The New York Times, the Guardian Newspaper and many Americans are advocating for clemency for Edward Snowden. Mr. Snowden does not deserve an immediate government issued get out of jail free card, a hero’s welcome home or a ticker tape parade as some of his supporters seem to suggest, despite his significant spying revelations on the National Security Agency (“NSA”).
Edward Snowden, no doubt, has done a great service by letting America and the rest of the world for that matter, in on the secret that the U.S. is violating its own Constitution by the NSA conducting surveillance on its citizens and many allies throughout the world. The U.S. Constitution prohibits unreasonable search and seizures. No one including President Obama would state anything to the contrary. Yet, the reward to Edward Snowden for revealing NSA’s spying crimes should not be immediate clemency in advance of his return trip home to face charges.
Mr. Snowden’s case is a complicated one with complex issues that perhaps, only the U.S. government knows the full extent. Mr. Snowden’s running to Hong Kong and Russia and attempts to Venezuela by way of Cuba, do not sway some to support any clemency efforts at this time. Along with Snowden’s promise to refrain from revealing even more detrimental documents, if he is allowed to come back to America, unscathed, is an extortion attempt. Whistleblowers should not attempt to extort the government to reach their desired goals. By going to Russia, at least for the next year, Mr. Snowden denies that he provided any documents to the Russian government. That seems unbelievable to many persons. Russia did not offer Mr. Snowden a place to reside out of the kindness of their hearts. They received something in return. And that’s the part that makes Snowden’s case for immediate clemency troubling and a difficult and bitter pill for some to swallow.
Snowden is presently charged with two counts of espionage and one count of theft in a criminal complaint. Each charge has a maximum of ten years. Snowden is more concerned about the government adding increased espionage charges by way of a Grand Jury, which might subject him to life in prison. The problem is that Snowden wants some form of clemency before he returns to the U.S. He wants to be afforded humanitarian relief based on his actions in spilling the beans on the NSA. But the system should not work in that manner, regardless of what Snowden’s efforts have brought to bear.
No doubt that Snowden has single handed focused attention on the illegal acts of the NSA. Those who distrust the government and suspect it of illegal wiretapping and surveillance have unfortunately been vindicated. For many years, another U.S. agency, the FBI, was spying on innocent persons, including Martin Luther King, Jr., long before Internet and cell phones. Yet, the magnitude of the surveillance by the NSA takes illegal surveillance to another catastrophic level.
Even some of our elected officials do not trust the NSA. On January 3, 2014, Vermont Senator Bernie Sanders wrote a letter to the director of the National Security Agency to reprimand the NSA for listening on phone calls on government leaders of countries such as Brazil, Germany, France, Mexico and others and collecting information of phone calls of Americans, email and websites that we visit. Citing U.S. District Court Judge Richard Leon who called the NSA actions, “almost Orwellian”. But, Senator Sanders also wrote to inquire if the NSA has spied or is spying on members of Congress and other elected officials. Edward Snowden also probably knows the answer.
Focusing back on Snowden, he did a service as well as a disservice to Americans. The good that he did in providing evidence to show the magnitude of the NSA’s illegal actions must be weighed with the manner in which he divulged and might continue to divulge information. I agree that with the information presently known, that Mr. Snowden does not deserve to face life in prison, for revealing that our government has systematically broken the law. But the manner in which he divulged the information and continues to perhaps divulge additional information is what should subject him to criminal prosecution before any leniency is considered.
Mr. Snowden is stuck between a rock and a hard place. He wants to return to the U.S. but he wants a guarantee that no harm, such as charges for life in prison, will await him. He must choose his poison. He can either return to the U.S. and face the music or he can stay abroad in Russia for as long as they will allow him to stay. His best option is to come back to face the criminal justice system and argue his case in the judicial system and perhaps plea bargain his case, like most other defendants charged with a crime. If he does return to U.S. soil, there will probably be a boat load of defense attorneys willing and able to represent him, in addition to those presently representing him. That option is his best option instead of wishing and waiting for clemency or guaranteed leniency before his return.
If special leniency privileges are afforded to Mr. Snowden before he comes back to the U.S. to face charges, it will further support the viewpoint among many that the criminal justice system is not fair or just. Edward Snowden’s case is a complicated one of perhaps, by his own doing by the means that he took. He should come back and dance to the music awaiting him. He should not hold his breath awaiting clemency.
Part II on the Edward Snowden case will focus on why hasn’t anyone from the NSA been investigated and charged.
Debbie Hines is a trial lawyer and former prosecutor who addresses issues on race and gender in the law and politics. She is frequently seen in the media on C-Span, BET News, RT-America, CBC-Canadian, News One and the Washington, DC network affiliates WUSA9, Fox 5 News and NBC 4. She also contributes to the Huffington Post and Women’s Media Center.