Obama was right on both Manning and Snowden
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Chelsea Manning. Edward Snowden. 

The names themselves almost inevitably invite controversy and disputes. They are beloved by some, and hated by others. In the aftermath of President Obama’s decision to commute the bulk of the remainder of Manning’s sentence, and to reject the move by Snowden supporters to secure a pardon for the former NSA contractor, the inevitable question that has to be asked is: what should we take away from all of this?

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Manning and her supporters understandably claimed vindication, arguing that the former Army private had been punished harshly for leaks that exposed human rights violations and that she had served more time in jail than people like Gen. Petraeus or Gen. Cartwright (neither of whom will serve any jail time for their respective misconduct involving classified information). Snowden remains in hiding in Russia, giving speeches on civil liberties issues while refusing to return to the United States until the terms of his prosecution meet his personal standards of “fairness.”

 

The whistleblower system Manning and Snowden declined to use has, somewhat surprisingly, grown stronger under the very same Obama administration that so famously pursued more prosecutions under the Espionage Act than any of its predecessors. President Obama issued Presidential Policy Directive 19 in 2012, creating administrative due process protections against whistleblower retaliation, and those protections were later extended by the Office of the Director of National Intelligence to contractors like Snowden. Congress codified these administrative due process protections into law in the Intelligence Authorization Act of 2014.

The decision made by Obama was, effectively, a “middle of the road” choice. By commuting Manning’s sentence, but not pardoning her, he reaffirmed the position of the U.S. government that those entrusted with the privilege of access to classified information should be held accountable for breaking that sacred trust. Similarly, by rejecting Snowden’s move for a pardon, he held consistent to the view that Snowden should not be granted a free pass given that he – unlike Manning – has refused to stand trial and face the charges arrayed against him. 

Such a choice was guaranteed to please few on either side of the issue, and maybe that was the point. The situation was never going to please anyone, let alone everyone. Manning and Snowden, whatever their noble intentions, leaked countless classified documents that compromised U.S. foreign policy and national security operations going forward. Some manner of punishment was required, had been imposed for Manning after a lengthy criminal proceeding, and leniency was arguably in order after 7 years of incarceration (and particularly given Manning’s apparently serious mental health concerns).

Conversely, to have simply pardoned Snowden would have been insulting to his former colleagues within the intelligence community who handle these matters lawfully. What kind of message would it send to the countless individuals who raise concerns through protected disclosures to the various inspectors general, or to the congressional intelligence committees? 

What reason would there be for individuals to spend considerable time and effort (and, in the event of civil litigation, their own money) trying to secure agency classification approval of written manuscripts and memoirs? Why bother trying to work within the system built up over the last few decades to address whistleblower concerns when you can just take a USB drive filled with classified materials, hand them off to journalists and then demand immunity because you claim you had noble intentions?

The whistleblower system is by no means perfect but it is vastly superior to the alternative option of anarchistic leaks of documents. Nor, contrary to what some would tell you, has anyone been prosecuted for engaging in protected whistleblower disclosures as is defined by federal law. 

Manning and Snowden leaked classified documents to journalists. John Kiriakou pled guilty to leaking the identity of a covert official to a private defense attorney (to say nothing of being charged with allegedly lying to the U.S. government during the course of the pre-publication review process for a book). Jeffrey Sterling was convicted for allegedly disseminating classified information to a journalist. Thomas Drake was originally charged (although the case later fell apart) for disclosures of allegedly classified information to a journalist. 

None of these individuals were charged with or convicted for making lawful, protected whistleblower disclosures to appropriate authorities. 

This all brings us back to Snowden. Whatever his proclaimed noble intentions, and whatever justification he might seek to invoke in terms of other individuals who were punished and/or prosecuted, Snowden was never deserving of a pardon. He is not entitled to return with impunity to the country that trained him, that granted him privileged access to some of its most closely guarded secrets, and that trusted him to help protect his fellow citizens. He should not be afforded the opportunity to claim the mantle of noble saint, and travel across the country claiming vindication. He made his bed, and now he should be forced to lie in it. 

Actions have consequences, even for Edward Snowden, and President Obama made the right choice in refusing to pardon him.

Bradley P. Moss is a partner at the Law Office of Mark S. Zaid, P.C., through which he has represented countless individuals (including whistleblower) serving within the intelligence community. In the interest of full disclosure, the Law Office of Mark S. Zaid, P.C., represented Jeffrey Sterling in his EEO lawsuit, as well as his protected disclosures to Congress.


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