Editorial: Why Edward Snowden should be punished

Edward Snowden should be punished for leaking key Edward Snowden should be punished for leaking key information on U.S. government surveillance, but should not be treated as a traitor. Photo Credit: Illustration by Janet Hamlin

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When his moment of truth arrives, what should be done with Edward Snowden?

Is the former intelligence contractor a traitor or a hero for leaking classified documents that spectacularly revealed the government's troubling collection of millions of Americans' phone and email records? He's in Russia now, beyond the reach of federal law enforcement. But the day will come when his fate rests in the hands of the United States, and everything from execution, to a long jail sentence to immunity is possible.

Based on what is now known, Snowden must pay for any crimes he's committed. He clearly should be punished -- but the arrogant, idealistic, 30-year-old should not be treated as a traitor.

There's little doubt Snowden is guilty of the charges in the criminal complaint the FBI filed in May in a federal court in Virginia: theft of government property, unauthorized communication of national defense information and the willful communication of classified intelligence information to an unauthorized person. He has admitted making off with massive amounts of computerized National Security Agency documents -- so many that intelligence officials aren't even sure what he took -- and passing most of the material on to news organizations worldwide.

However, if not for Snowden's audacity, President Barack Obama wouldn't be poised on Friday to announce reforms in how the NSA does its business. And our nation wouldn't have the information it needs to judge whether those reforms acceptably balance the cost in lost liberty and the benefit in increased security.

 

What Snowden did might be best described as a classic case of civil disobedience. He told us he decided to violate the law to expose a breadth of surveillance he thought immoral. At its core, however, civil disobedience includes accepting punishment for your actions.

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Snowden has been both vilified and lionized for what he did. He deserves a bit of each.

He decided he's a better judge of what's in the national interest than the president or Congress. People entrusted with state secrets can't be allowed to make that kind of call. The potential harm to the nation is too great.

In addition to revealing NSA surveillance, Snowden's leaks about other programs have put U.S. troops at risk and prompted terrorists to change their tactics, according to the Pentagon.

But his actions were also brave. If not for his leaks, the public would still be blind to the breathtaking scope of the government's collection of phone and email records of millions of Americans suspected of no wrongdoing.

We wouldn't know that an NSA audit found the agency violated privacy rules or overstepped its legal authority 2,776 times in one year while sweeping up those records. Or that U.S. District Judge Reggie B. Walton, the chief judge of the secret Foreign Intelligence Surveillance Court that approved the snooping, believes the court is incapable of independently verifying when its orders are violated or determining whether the violations are intentional.

And we wouldn't know that NSA covertly created a backdoor into the fiber-optic links that Google and Yahoo each use to connect their data centers around the world, allowing it to monitor and collect data on everything the companies' customers view or communicate -- a breach of privacy that could hurt the companies' global competitiveness.

So is Snowden a whistle-blower who deserves protection rather than prison? Probably not. By law a whistle-blower reveals illegal or improper government actions. NSA surveillance was authorized by Congress, ordered by the White House and approved by the Foreign Intelligence Surveillance Court. Two federal courts have reviewed the program and split on whether the surveillance is unconstitutional. It was an overreach, but possibly not illegal or improper.

The focus now should be to avoid genuine harm to the nation's security, stop the leaks and bring Snowden to justice.

After taking the documents, Snowden fled to Hong Kong. He said he divested himself of all the stolen, classified material before leaving Hong Kong for Russia, where he was given temporary asylum and remains today, out of the reach of U.S. law enforcement. Snowden said he wanted to make sure the documents would not fall into the hands of Russian intelligence officials.

After six months on the run, he's seeking permanent asylum in Brazil. In an open letter to the Brazilian people in a newspaper there last month, Snowden sought to explain and justify his actions and offered to assist that nation's senators investigating whether the NSA surveillance included crimes against that nation's citizens.

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If he has given state secrets to other governments during his flight, then any plea deal that offers leniency is out of the question. That would be espionage and should be punished severely. Otherwise, a deal is warranted.

The White House has been pressuring nations not to give Snowden permanent asylum, but it has not been able to extradite him from Russia. Offering a deal that brings him home voluntarily may be the best shot.

 

If and when Snowden is in U.S. custody, the president at the time should balance the competing ideals at the heart of his case. In exchange for returning to the United States, admitting guilt, returning whatever documents are still under his control and providing an extensive accounting of what he took and how he accomplished it, Snowden should be offered a plea deal. Jail time, but not a life sentence. And there must be a "Son of Sam" provision to ensure he never profits from his crimes through things like book or movie deals.

The important debate Snowden sought has been joined. Now authorities should cut the nation's losses by cutting a deal to ensure he faces the music.

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