Justice for Edward Snowden

It is time for President Obama to offer clemency to Edward Snowden, the courageous U.S. citizen who revealed the Orwellian reach of the National Security Agency's sweeping surveillance of Americans. His actions may have broken the law, but his act, as the New York Times editorialized, did the nation "a great service."

In an interview that the Nation magazine is publishing this week, Nation Contributing Editor Stephen Cohen and I asked Snowden his definition of patriotism. He sensibly argues patriotism is not "acting to benefit the government," but to "act on behalf of one's country. . . . You're not patriotic just because you back whoever's in power today. . . . You're patriotic when you work to improve the lives of the people of your country," including protecting their rights.

That requires hard choices. When a government is trampling the rights of the people in secrecy, patriots have a duty to speak out. Snowden notes that there is no "oath of secrecy" for people who work for the government. Contract employees like Snowden sign a form, a civil agreement, agreeing not to release classified information, opening themselves to civil or criminal prosecution if they do. "But you are also asked to take an oath, and that's the oath of service. The oath of service is not to secrecy, but to the Constitution -- to protect it against all enemies, foreign and domestic. That's the oath that I kept."

Snowden's actions revealed that the National Security Agency was collecting information, without a warrant, on millions of Americans. The revelations properly sparked outrage across the globe, and even in our somnambulant Congress. Countries and companies began seeking ways to curtail the invasion. Two federal judges have ruled that the NSA is guilty of trampling the Fourth Amendment protections of the Constitution. As U.S. District Judge Richard Leon, an appointee of George W. Bush, wrote, "I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgment of freedom of the people by gradual and silent encroachments by those in power,' would be aghast." Even Obama, who has asserted a sweeping view of the national security prerogatives of the executive, was forced to appoint a commission to review the program. That commission issued a powerful critique of the NSA and called for a fundamental reform of its operations.

Snowden's revelations came only a few weeks after James Clapper, the director of National Intelligence, was asked under oath by Sen. Ron Wyden (D-Ore.) if the government was collecting data on millions of Americans. "No," Clapper replied. When the disclosures of Edward Snowden proved that the NSA was in fact doing just that, Clapper begrudgingly admitted that his response was the "least untruthful" he could think of, and later suggested that he "misspoke."

Today, Clapper, who lied under oath to the Congress, somehow remains in office. Meanwhile Snowden, the NSA contractor who courageously revealed the horrifying and unconstitutional scope of the agency's surveillance, is in exile and under indictment. This is a clear measure of just how endangered our constitutional liberties are.

Snowden's revelations embarrassed the intelligence agencies and discomfited the White House. There is no hard evidence that they harmed U.S. security in any fashion. In fact, the revelations clearly have helped to defend our liberties. The new NSA director, Michael Rogers, even admits that he doesn't see "the sky falling down."

Obama claims that Snowden could have triggered the same review and debate by taking his charges to his superiors and that he would have been protected under Obama's whistleblower regulations. But Snowden exposed his concerns to supervisors behind the veil of secrecy and nothing happened. And others like former NSA staffer Thomas Drake have found out, whistleblower laws would have provided Snowden no real protection if the agency decided to retaliate.

Obama campaigned for office pledging to bring the war on terrorism under the limits of the Constitution. He pledged to close Guantanamo, end torture and, in the words of his inaugural address, to "reject as false the choice between our safety and our ideals."

We are a long way from the promises and the expectations of that moment, but the president had it right then. Snowden has it right as well when he warns, "when governments go too far to punish people for actions that are dissent rather than a real threat to the nation, they risk delegitimizing not just their systems of justice, but the legitimacy of the government itself."

In his last months in office, Obama can curtail some of the dangerous executive excesses that have spawned since Sept. 11. A sensible first step would be to fire Clapper for lying to Congress about the secret program trampling Americans' privacy. And then Obama should offer clemency to Snowden for revealing the alarming truth to the American people.