Published by The Lawfare Institute
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Let’s start with an obvious point: As Jack Goldsmith pointed out last week, President Obama is not going to pardon Edward Snowden. It’s just not going to happen. Period. And everyone involved in the campaign for a pardon for the Moscow-based fugitive is fully aware there is no hope it will come to fruition.
Given this reality, let’s be candid about the point of this campaign: It is not designed to achieve its ostensible ends. The point, rather, is to provide a vehicle for people to talk about Snowden in heroic terms again. A cynic might note that the campaign also provides an opportunity for the related organizations to use the release of Oliver Stone’s Snowden biopic to raise money and attention for their causes and fund similar work in the future.
It is important to understand the discussion in that context. Jack and Tim Edgar have debated the question of a Snowden pardon in considerable detail, as have the Washington Post and the inevitable Glenn Greenwald and many others. But all seem to be engaging the subject as though there is some serious actual live question at play and as though the precise legal equities and practical policy consequences are thus the real issue here. There isn’t. And they aren’t.
Our certainty that President Obama will not pardon Snowden flows not just from the White House’s repeated statements that he won’t. Beyond those unambiguous statements from the administration, it is important to recognize that Snowden doesn’t fall into any of the categories of individuals for whom presidents tend to consider pardons. And he does fall into several categories of people who almost never receive clemency.
The pardon power is highly idiosyncratic, one of the few truly unreviewable powers the president has. Its use over the years thus reflects the huge diversity of presidential attitudes and the similar diversity of presidents’ political tactics and aspirations. Still, there are some discernable general categories of people who receive clemency.
Most often, the pardon power is the power to forgive those who have moved beyond their criminality—to extend a second chance not otherwise available under the formalities of federal law. This application of the pardon power—generally the most numerous exercise of the power in modern presidencies—simply does not apply to Snowden. Snowden has prevented his criminality even from being established legally, let alone moved beyond. Snowden revels in his acts. He doesn’t ask forgiveness for them, not even the most questionable aspects of his conduct. Instead, he asks for congratulations.
Exercises of the pardon power sometimes also remedy miscarriages of justices. There are cases in which a prisoner’s appeals are exhausted or unlikely to succeed, yet a reasonable person would understand that the individual is factually innocent. This is a bigger deal at the state level, where procedural rules can gravely impede post-conviction remedies, than it is at the federal level; Sen. Tim Kaine, while governor of Virginia, was involved in one of them. But again, this category has no application to Snowden, to whom justice has not yet been applied. A miscarriage of justice requires a delivery of justice in the first instance.
Relatedly, presidents sometimes use the power of clemency—typically in the form of commutation—as a way of remediating grossly disproportionate punishments. Obama, for example, has made term commutations for drug offenses a central part of his criminal justice reform efforts. Hold this thought, which has clearer application to a case somewhat related to Snowden. But it has no application to Snowden himself. Snowden fears a sentence that would be, in his view, disproportionate. But he has not actually received one.
The pardon also sometimes absolves individuals who have unequivocally violated a law but whose moral stance we admire. Think of Martin Luther King’s letter from the Montgomery jail:
One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."
A president who agrees with a convict that the convict had taken a righteous stand in violation of an unjust law—unjust at least as applied to him—might exercise the power of the pardon to nullify the injustice. These pardons are actually very rare. George W. Bush posthumously pardoned Charles Winters, who was convicted of violating the Neutrality Act by smuggling B-17 bombers to the newly-formed state of Israel. The pardon, which was advocated by Israel and prominent American Jews, served as a symbolic expression of the supposed injustice of the law as applied to Winters, considering the ultimate change in the relationship between Israel and the US.
Finally, in certain instances, the pardon power operates to try to settle matters of national controversy, sometimes even in the presence of undoubted guilt and serious crimes. The most famous of these is President Ford’s pardon of Richard Nixon, but there are others too. President Carter pardoned Vietnam draft resisters. And both Carter and President Clinton commuted the sentences of violent Puerto Rican terrorists who either planted bombs or shot up the House of Representatives.
It is these last two categories of pardons into which Snowden’s advocates are trying to cram Snowden’s case. But he fits well into neither. It is true, after all, that some people admire his actions and consider the laws unjust under which the government would try him, either in general or because—as Snowden himself whines—there is no affirmative defense available on the basis of righteousness. The problem is that these are far from consensus views, and critically, there is one person who clearly does not share them: President Barack Hussein Obama. One of the features of this plenary power vested in a unitary executive is it is Obama alone, and not Glenn Greenwald, who gets to decide for purposes of the pardon power whether Snowden is Martin Luther King Jr. in the Montgomery jail or whether he is a reckless fugitive who can rot in Moscow if he’s not willing to face the music.
The best fit for Snowden is the last category, what we might call the national unity pardon. This is, in part, the basis for Tim Edgar’s case for a Snowden pardon. The trouble, once again, is Snowden’s status as a fugitive. It is very hard to put behind us as a nation what we have not been allowed to face as a nation. Keep in mind that the facts in the Snowden case are deeply contested, both about what precisely Snowden did and about how bad the damage from his acts really was. The reason we don’t know the answers to these questions is that Snowden is accepting the hospitality of Vladimir Putin, rather than facing the justice system of the United States, from which he now asks for mercy. The government has been reticent to discuss the specifics of Snowden’s conduct, as well as the resulting harms, in part because it is preserving that information for an eventual criminal prosecution. That is why, for example, the recent HPSCI report condemning Snowden is based off of “secondary witnesses” whom the government does not intend to call at trial.
Many in the government very much welcome the opportunity to prove their claims in court. And it is difficult to imagine how the American public could form a final assessment of Snowden’s genuine motivations and moral culpability without having those questions answered. Asking the President—who is the chief victim of Snowden’s crimes, by the way—to prevent the airing of these questions will, we suspect, seem a bit cheeky to Obama.
While Snowden does not fit in any category of criminal who normally gets a pardon, he does fit into at least a few that almost never do.
For one thing, presidents don’t normally pardon fugitives. There are exceptions to this rule: Carter pardoned draft resisters, some of whom were abroad, though he did so as a class, which is rather different. The most famous modern exception to this rule—Clinton’s pardon of Marc Rich—was a political disaster for Clinton and for good reason. Fugitives are, as a general matter, thumbing their noses at our justice system. The president is in charge of the justice system and when a president helps an alleged criminal thumb his nose at that system, people rightly get annoyed. Individuals accused of crimes are expected to stand trial, to allow for the airing and determination of the relevant facts and the assessment of culpability in light of them all. All individuals accused of crimes are entitled a fair trial, but they are not entitled to avoid a trial outright.
Presidents also don’t pardon people simply because lots of people believe their crimes resulted in a positive effect, or even more positive than negative effects. This sort of post-hoc utilitarian analysis is key to the arguments for a Snowden pardon. But even if you accept the premise the Snowden’s disclosures led to net good, a highly-contested assertion, this view is still highly problematic. Think about it for a moment: A lot of crime produces positive effects. If that were enough to convey a pardon, we’d expect pardons for gang members who kill other gang members who would have undoubtedly overseen future violence. We’d also routinely pardon vigilantes.
To sum up, take a moment to consider this whole question from Obama’s point of view. You have before you a demand for a pardon from an unrepentant fugitive who is proud of what he did, who did great damage that his supporters consistently deny to your own intelligence capability, and whose supporters insist that a pardon is necessary because of some combination of the moral stance he took, the good effects of the leaks, and the need to move on. You, on the other hand, believe that the good did not outweigh the harm. And you and your intelligence services have already moved on. And then they, as Edgar did in his piece, trot out what must seem to you like the worst possible argument for a pardon: Snowden continues to embarrass us from abroad. To capitulate on these grounds would seem like a kind of blackmail: Pardon me or I’ll continue to operate as a PR foil for an adversary nation and its dictator. Why would you even momentarily entertain the idea?
There is, ironically, a controversial leaker case in which executive clemency is worth considering, but it isn’t Snowden’s case. It’s the case of Chelsea Manning. Manning, unlike Snowden, faced the consequences of her actions. She faced trial. She allowed the facts to come out about what she did—which has allowed a serious assessment of the relative good and bad of the disclosures. She also was, at least in part, responding to a genuinely horrifying killing by US troops in Iraq. Manning’s case also presents mitigating circumstances related to mental health in a vulnerable personal period. Critically, she also received a sentence of 35 years in prison that many people—including the two of us—regard as excessive and disproportionate.
If there is a case in which to exercise executive prerogative to heal a rift regarding the treatment of self-proclaimed whistleblowers, Manning’s is infinitely more deserving than Snowden. We do not argue that Obama should consider a pardon: Manning committed serious and consequential crimes and was properly convicted. But the President should consider commuting the sentence either to time served or to some reasonable period of additional years. Manning has been imprisoned for more than six years; she could be eligible for parole in the next several years with good behavior. She clearly presents no ongoing security risk and it’s hard to imagine how her circumstances would inspire others in the military to believe they can disclose classified information without consequence.
And from a pragmatic standpoint, the Manning case continues to generate divisive headlines which highlight the current inability of the US military to facilitate compassionate and humane in-service transition for transgender people. As the military struggles to modernize its policies, it would be well-served to not have the most high-profile example be in the highly-complex context of detention. All things considered, Manning has a potentially serious case for mercy and the President should at least consider commuting her sentence.
Edward Snowden is welcome to return to the United States and account for his actions. But as long as the oaths of our executives, the laws of our Congress, and indeed the central assurances of our very system of justice are not enough for Mr. Snowden, any talk of a pardon should wait until he does. Until then, we should allow him to fade into obscurity in Russia, a punishment we suspect may be the most painful to Snowden himself.