A pardon for Snowden? I hope not.

Over the weekend, President Trump said he will “take a look” at granting a pardon to Edward Snowden, the former NSA contractor. Snowden was charged with espionage in 2013 after disclosing a trove of highly confidential documents about U.S. surveillance programs. He fled the country and now lives in Russia.

Trump explained:

I’m not that aware of the Snowden situation, but I’m going to start looking at it. It seems to be a split decision. There are many people think that he should be somehow treated differently and other people think he did very bad things.

There are “split decisions” over just about every issue in the U.S. these days. It’s not clear why Trump should devote valuable time trying to adjudicate the split over Snowden.

In any event, when Trump completes his “look,” he should reject the idea of pardoning Snowden. Near the end of the Obama administration, when there was talk of pardoning Snowden, Fred Fleitz powerfully made the case against a pardon. In the process, he showed that, among those in a position to know the damage Snowden did to America, the decision isn’t “split.” Fleitz wrote:

At a time of extreme partisanship in our country and in the midst of what may be the most contentious presidential election in U.S. history, a congressional committee did something extraordinary: It issued a bipartisan and unanimous report on an extremely divisive issue. This issue is whether former National Security Agency technician Edward Snowden, who stole 1.5 million classified documents and leaked thousands to the news media, is a true whistleblower or a traitor.

(Emphasis added)

The verdict: Snowden is a traitor. Mike Pompeo was a key member of the Committee.

Fleitz summarized the five unanimous findings of the House Intelligence Committee. The four relevant to Snowden were:

1. Snowden Caused Tremendous Damage to National Security.
2. Snowden Was Not a Whistleblower.
3. Snowden Was a Poor Performer and Disgruntled Employee.
4. Snowden Was and Remains a Serial Exaggerator and Fabricator.

The first finding should be the key to any analysis of a whether a pardon is warranted. Here is Fleitz’s discussion of the damage Snowden caused to our national security:

The vast majority of the documents [Snowden] stole have nothing to do with programs impacting individual privacy interests — they instead pertain to military, defense, and intelligence programs of great interest to America’s adversaries. Although many experts had already concluded this, the report added that the U.S. government has spent at least hundreds of millions of dollars and will eventually spend billions to counter the damage done by the Snowden leaks.

The most well-known Snowden disclosure concerned the NSA metadata program, which collects phone records but not the contents of phone calls. Although this program has long been overseen by the congressional intelligence committees and helped halt several terrorist attacks against the United States, Snowden’s leaks about it led to a hysterical and uninformed reaction by the press and some members of Congress that led Congress and President Obama to implement major restrictions, which have made this program much more difficult for intelligence officers to use to identify and track terrorist suspects.

Snowden’s defenders claim that since the metadata program violated the Constitution and the privacy rights of Americans, Snowden was justified in leaking information to the press about it and therefore should receive a presidential pardon. Putting aside that Snowden didn’t bother trying to raise his supposed concern about this program through legal channels, the facts are that the vast majority of court decisions on this program upheld it as legal, Congress and the Justice Department have monitored it, and only very minor abuses were discovered. To read more on this issue, see my May 2015 NRO article “NSA Data Collection: Necessary or Unconstitutional.”

While the unclassified report summary does not give specifics of how Snowden’s leaks benefited U.S. enemies and terrorists (that is probably detailed in the classified version available to all House members), U.S. intelligence officials have publicly stated that Snowden’s leaks have allowed ISIS and al-Qaeda to evade detection by Western intelligence services. Former CIA director James Woolsey has called for Snowden to receive the death penalty because his leaks of NSA monitoring techniques helped the ISIS-inspired terrorists who committed the November 2015 Paris terrorist attacks conceal their electronic communications.

The unclassified report also does not mention concerns that Snowden’s leaks have made it more difficult to stop terrorist attacks in the United States. A Chicago Tribune editorial and a Wall Street Journal op-ed by L. Gordon Cravitz, both published in December 2015, noted how limits on the use of the NSA metadata program — especially how long the government can retain phone records — kept intelligence agencies and law enforcement from acquiring intelligence that may have prevented the December 2, 2015 San Bernardino terrorist attack in which two ISIS-inspired terrorists murdered 14.

(Emphasis added)

The House Intelligence Committee also sent a unanimous letter to President Obama urging him not to pardon Snowden. I hope President Trump considers the letter as part of his review.

Key congressional figures are urging Trump not to pardon Snowden. For example, the top Democrat and the top Republican on the House Armed Services Committee have done so. They stated:

President Trump and [Defense Secretary Mark Esper] have both decried harmful leaks from the Department of Defense and elsewhere in the federal government. To pardon Snowden now would completely undermine this Administration’s position and mock our national security workforce who take immense caution in their work to keep us safe.

Let’s hope that Trump’s concern about leaks isn’t confined to leaks that harm him.

Trump himself said in a 2013 interview that Snowden was “a terrible threat” and “traitor.” I won’t speculate as to why Trump now professes doubt about this, but the fact that “many people” think Snowden wasn’t treated properly is not a satisfactory explanation.

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