Let Snowden Come Home: An Opinion Column

“Free Speech” is a monthly column by Chris Finan, director of the American Booksellers for Free Expression (ABFE), that shares his personal thoughts and opinions on a broad range of free expression issues; the views expressed do not necessarily reflect those of the American Booksellers Association. Finan welcomes comments and suggestions at [email protected].

So, what do we think of Edward Snowden now?

If Snowden had not leaked government documents revealing that the National Security Agency (NSA) was collecting information about the telephone calls of millions of Americans, Congress would never have approved the USA FREEDOM Act, the most significant reform of the government’s national security authority in almost 40 years.

Yet many government officials are demanding that Snowden be punished. President Obama supported the FREEDOM Act and signed it into law, but a White House spokesman said later that he still believes Snowden belongs in jail.

Snowden, a former NSA contractor who began to reveal government secrets in June 2013, has been charged with three crimes that could send him to prison for 30 years. He is currently living in Russia, where he has been granted asylum.

Should someone who has exposed government abuses be punished so severely — or even at all?

Snowden was a mysterious figure when he first came to public attention. He wasn’t even 30, but he claimed to have knowledge of many of the federal government’s most secret programs. Did he really know as much as he claimed? He said he was acting to protect American democracy. Was he really a spy giving information to our enemies?

We have learned a lot about Snowden since. He is certainly not a coward. The 2014 documentary Citizenfour shows us a serious young man in the first days after his identity was revealed. He is clearly frightened by the wrath of the U.S. government — and with good reason. Yet he says he does not regret his decision.

We also know that Snowden took steps he believed would minimize any potential damage that his revelations might cause. Army Private Bradley Manning, now known as Chelsea Manning, gave hundreds of thousands of secret documents to WikiLeaks, a website with a reputation for posting information without any regard to whom it might hurt. In contrast, Snowden shared his documents with journalists from the world’s leading newspapers, including the New York Times, the Washington Post and the Guardian. They made the decision about what secrets would be revealed.

Some dispute the claim that Snowden’s revelations have caused any harm. In David Shipler’s new book, Freedom of Speech: Mightier Than the Sword, James Risen, a national security correspondent for the New York Times, says, “I don’t think anybody can point to a single story in recent history that’s really damaged national security.” Risen even discounts the contention that the WikiLeaks expose was in any way harmful. “All it was was kind of embarrassing,” he said.

Others continue to argue that Snowden’s leaks have made us less safe. On June 14, the Sunday Times in London, citing unnamed British officials, claimed that Russia and China had gained access to Snowden’s documents and that British intelligence agencies had been forced “to pull agents out of live operations in hostile countries.” (The Guardian has raised questions about the report.)

Richard Clarke, a former intelligence official who served in senior positions in several administrations, has expressed concern about the potential danger that the growing power of government surveillance poses to civil liberties. But he recently said Snowden’s leaks have made it more difficult to monitor terrorist groups, which changed the way they communicate based on what they have learned about NSA programs. He believes Snowden should go to jail “for a very, very long time.”

Leaks can certainly be dangerous. But so can government secrecy. The collection of our telephone records under the USA PATRIOT Act is only the latest example. Manipulation of secret intelligence about “weapons of mass destruction” helped send us into a costly war in Iraq. The government hid its use of torture on suspected terrorists. It read the emails of American citizens and listened to their telephone calls without a warrant.

James Risen contends that almost all these government abuses would have remained a secret if it weren’t for whisteblowers like Snowden and the reporters who turned their leaks into stories. “You’d be hard-pressed to find any significant facts, any major significant fact about the war on terror that hasn’t been disclosed first in the press, rather than voluntarily disclosed by the government,” Risen said.

John Kerry and others suggest that Snowden is a coward because he has refused to return to face charges. They demand that he “face the music.”

However, I believe Snowden has good reason to doubt he will get a fair trial. Two of the three charges against him are violations of the Espionage Act, a wartime measure that was enacted in 1917 to punish spies. In previous prosecutions under the Espionage Act, defendants have not been permitted to testify that they were exposing government wrongdoing when they broke the law.

Daniel Ellsberg tried to put his actions into this context in 1969 when he was charged under the Espionage Act for revealing the contents of the Pentagon Papers, a secret Department of Defense study that was critical of government policy in Vietnam. During the trial, his lawyer asked him why he had leaked the documents. “I was silenced before I could begin to answer,” he wrote last year. “The government prosecutor objected—‘irrelevant’—and the judge sustained.”

The same objection is being raised against whistleblowers recently charged under the Espionage Act. One was barred for using the word “whistleblowing” during his testimony. A judge in another case declared that the prosecution did not have to prove that a whistleblower had damaged national security or benefited a foreign power—“even potentially.”

The government has a right to protect its secrets. But the men and women who reveal government wrongdoing at great personal risk must have the opportunity to explain to a jury why they broke the law.

In the absence of a public-interest exception, the Espionage Act charges against Snowden should be dropped, allowing him to be tried for stealing government documents or another lesser crime.

Edward Snowden should not be facing 30 years in jail for revealing the existence of a surveillance program that has now been repudiated by large bipartisan majorities in the House and Senate. He has made democracy safer.

It is time to bring him home.