Trump's Whistleblowers--Why Pardoning Manning and Snowden Makes Sense Now

Whatever you might have previously thought about the notion of President Barack Obama pardoning Chelsea Manning and Edward Snowden, the election of Donald Trump changes everything. The stunning new reality, and the threat it poses to Americans and non-Americans, shifts and strengthens the case for Obama to take this extraordinary step before he departs: pardoning these two most visible critics for their illegal disclosures. The rationale: to empower and embolden whistleblowers over the next four years and beyond.

The two of us actually come to somewhat different conclusions on the scope of such a pardon: one of us favors a full pardon and the other favors a pardon for only a small subset of their offences (more on that later). Far more importantly, we share a common bottom line in favor of some kind of pardon and the principal reasons for it. What has changed so dramatically is the comforting assumption that future American leaders would not abuse the power that has slowly accreted to the government. The United States is now entering extraordinary times. It requires exceptional measures.

Before his term ends in January, Obama should consider such pardons as a vehicle for defining his legacy - a symbolic and strategic action to make up for one of the admitted defects in his presidency. Facing reelection in 2012, Obama acknowledged to Jon Stewart, the host of The Daily Show at the time, that congressional action would be needed to constrain a future president on national security issues such as torture, detention, targeted killing, and the like:

"One of the things we've got to do is put a legal architecture in place, and we need congressional help in order to do that, to make sure that not only am I reined in but any president's reined in terms of some of the decisions that we're making."

Unfortunately, the past four years have done little to "put a legal architecture in place" to constrain the next president. This dire situation has not been lost on others who were involved in those actions (or inactions) in 2012. In the aftermath of the Nov. 8 election, Jeffrey Shapiro, a former senior Obama official, remarked that the President should quickly seek to impose constitutional checks on the presidential use of the targeted killing program. But what constitutional checks could conceivably be put in place now for that or other national security programs, and what's the solution when Congress is demonstrably unwilling or unable to assist?

With no help from the Hill, Obama can turn to another constitutional check within the legal system: the whistleblower. In fact, pardoning his whistleblowers is the most significant act Obama can now take to mark the limits of the national security and surveillance state. It would also help ensure his legacy is not one that President Trump ultimately gets to define -- precisely because Obama left his successor so much room for maneuver in the national security space. Most importantly, for all our futures, such an act would help to empower one of the most important agents for safeguarding freedoms and rights down the line.

One of us (Ryan) favors pardoning Manning and Snowden for only a small subset of their actions. On his view, only a very limited part of Manning's and Snowden's actions come close enough to genuine whistleblowing (e.g., a reasonable case can be made with respect to the 215 program) and other actions by them clearly fail that test (for a similar view, see former head of the Justice Departrment's Office of Legal Counsel, Jack Goldsmith's post over at Lawfare). A partial pardon could thus send a powerful signal about the importance of whistleblowing and the highly unacceptable nature of the rest of what Manning and Snowden did. In addition to those considerations, a full pardon, on Ryan's view, is not politically realistic, would damage the national security credibility and relationships with the intelligence community that Obama and his team built, and would also feed a Trump-Bannon narrative of Obama wrecking national security and out to do harm to the country.

The other one of us (Sam) favors a much fuller - if not total - pardon. On this view, the premium at this critical juncture falls on symbolism to honor those who were once viewed as traitors as patriots instead. They anticipated, far better than the rest of us, the extraordinary dangers of the accumulation of power they revealed for the sake of public debate. With its roots in the king's forbearance, the pardon was never about narrowly tailored retribution, but overall social justice. Nor is there any reason to fear that broader pardons for these highest profile whistleblowers would create perverse incentives: the unique circumstances would make of Obama's gesture an emergency action that hardly invited future criminality. Finally, were Manning left in jail after her latest suicide attempt, while Snowden remained stranded in Russia with a long charge sheet, the signaling purpose of the pardon would likely miscarry. And if Trump makes hay of the broader pardon, at least Obama could take solace in the daylight he had successfully placed between his policies and what his successor does with them.

[As we were in final preparation for this post, the NYT Times' Charlie Savage reported that Manning, after six years in jail, now merely wants release after time served, not necessarily a formal pardon. Ryan's selective approach would pardon Manning for some of her crimes and would not preclude commutation of the remainder of her sentence for the other offences. Sam would favor her immediate release, with a full pardon and commutation.]

A pardon by such a highly respected President as Obama would go a long way to encouraging public servants to blow the whistle if and when Trump or his appointees break the sacred trust with our constitution or the rule of law. The issue has become all the more real for many. Recent days have seen widespread calls to law abiding national security professionals to serve in government, because the country would suffer even more should they take their distance out of concern to keep their hands clean. But, precisely to the extent that we urge lawyers and others to enforce boundaries in serving the next administration, and that we prize internal reform and not merely external criticism, we must equally stress that rare circumstances demand the conscientious revelation of hidden illegality. If we recommend that an ethic of public service encourages the risk of dirty hands, a pardon would highlight the true value of those who decide that there are limits to compromise.

Absent some sort of pardon for these most visible dissidents, Obama risks a dual legacy. He has exercised noble restraint in the use of national security powers, but at the same time has set a dangerous precedent for use of these authorities behind closed doors. In his defense, until a few days ago, it was barely imaginable that anyone truly irresponsible would find his way into the cockpit of the most invasive and powerful national security and surveillance state ever constructed. While it is too late for Obama to entrench more constraints on his successor or to undo his precedents, pardoning these two famous whistleblowers could make a massive difference for the future. It would make clear that, if defending our country from terrorist threats under a permissive understanding of applicable law is one part of Obama's achievement, protecting us from what could come next is another.