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Why Obama should pardon Snowden

By Jonathan Turley
Los Angeles Times

Former CIA Director R. James Woolsey weighed in last week on the subject of Edward Snowden. Asked about calls of clemency for the former National Security Agency contractor, Woolsey insisted that Snowden should be “hanged by the neck until he is dead.”

Woolsey reflects the current thinking in Washington: reform for the NSA and the rope for Snowden. However, it may be time for President Obama to show real leadership and acknowledge that Snowden is the reason for the current reform push.

It may be time to pardon Edward Snowden.

He has almost certainly committed criminal acts in removing and disclosing classified material. As someone who has held a top-secret clearance since the Reagan administration, I do not condone such violations. However, Snowden is a better candidate for clemency than many believe.

A presidential pardon is not an endorsement of the individual’s underlying actions. To the contrary, the vast majority of pardons follow criminal convictions. Rather, pardons are issued because of mitigating or extenuating circumstances.

Sometimes clemency is a way of healing a national divide or bringing closure to a national controversy. George Washington pardoned all of those in the Whiskey Rebellion, and John Adams considered it in “the public good” to pardon Pennsylvania rebels. Likewise, Gerald Ford did not condone the crimes of Richard Nixon, but he viewed a pardon as in the best interest of the country.

When considered in light of the thousands of past pardon and commutation recipients, Snowden compares favorably.

While the Obama administration continues to insist that Snowden does not fit the definition of a whistle-blower, even the White House admits that abuses occurred in the massive NSA surveillance program that he revealed. Snowden’s disclosures have prompted the creation of two task forces, one of which came back last week with a recommendation of numerous reforms. Moreover, a federal judge has now ruled that the NSA program is flagrantly unconstitutional.

Snowden may have revealed a larger volume of material, but he is not the first to disclose highly classified matters. Most whistle-blowers release either confidential or classified material. Indeed, Daniel Ellsberg’s leak of the Pentagon Papers (celebrated as one of the most important moments in our history) involved the release of classified documents that the Nixon administration insisted placed the entire nation at risk.

Snowden faced a system that was entirely uninterested in, if not outright hostile to, hearing about abuses. Indeed, various people had tried to raise questions about the extent of government surveillance in previous years. I represented one prior NSA whistle-blower who disclosed the massive surveillance program, but the public ignored him and he was threatened with arrest.

Despite such cases and media coverage, the White House and Congress turned a blind eye to abuses. It was Snowden who forced action.

Some NSA officials have already suggested that amnesty could be used to secure thousands of documents still in Snowden’s possession. A pardon could be conditioned on the return of all these documents and the signing of a nondisclosure agreement.

Moreover, a pardon would demonstrate that the White House is serious about reform, and accepts responsibility for past abuses.

Finally, a pardon would resolve a glaring contradiction in how the White House has dealt with alleged crimes by national security officials. No one was prosecuted when CIA officials admitted destroying torture tapes to avoid their use in any future prosecution. And when the NSA program was raised in public, National Intelligence Director James Clapper appeared before Congress and lied about it. He later said that he gave the least untruthful statement he could think of. But it was nevertheless untrue and potentially a crime for which he could be prosecuted.

But instead of firing Clapper and calling for his arrest, Obama asked him to participate on a task force to review the program.

Snowden has a greater claim than many who have received reprieves. He certainly deserves the same consideration in disclosing abuses that Obama officials received in concealing them from the public.

Jonathan Turley is a George Washington University professor and a lead defense counsel in national security cases.

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