In these last days before the Trump Administration, I want to add a very brief and very late word about why I believe President Obama would be right to grant Edward Snowden a pardon. The U.S. Government indicted him for his disclosures in June 2013 under the Espionage Act of 1917 and a law prohibiting the theft of government property. I am not now taking sides in the debate over the merits of the disclosures. Rather, my support for a pardon rests on what I see as a central flaw in the legal framework by which Snowden would be prosecuted – a flaw that runs counter to the obligation of the United States under Article 19 of the International Covenant on Civil and Political Rights to protect and promote the public’s right to seek, receive and impart information, especially on matters of public interest.
Simply put, any prosecution of Snowden would not address what I believe should be the core question for a court: Did the public interest in the disclosures outweigh, or were they outweighed by, any demonstrated damage they did to national security? The Espionage Act does not provide a mechanism for the court to assess this question. It does not allow Snowden or any other whistleblower to mount a public interest defense – the accused violates the law simply if he or she disclosed classified information. This all-or-nothing approach does not allow a court to balance the government’s legitimate need to protect certain kinds of information with the public’s right to know. The Espionage Act is antiquated, ill-suited to contemporary national security issues, a relic of the wartime hysteria of a century ago subject to government overreach and abuse. As a result, should he return to the United States absent a pardon, Snowden faces a future that would almost certainly involve an extremely harsh penalty. This will ultimately deter public interest disclosures – including disclosures of fraud, waste and abuse – that are so vital to accountability and democracy.
This is not a statement against all government secrecy. Governments have legitimate reasons to restrict disclosure of certain kinds of national security information. This is not even an argument that the public interest in the disclosures, which I do believe to be very strong, actually outweighed alleged damage to national security. It is instead a recognition that any trial of Snowden would avoid the central issues of the public debate, and to that extent, it would lack fundamental fairness.
My views on the Snowden case were largely shaped by the research that led to my report to the UN General Assembly in 2015 on the protection of sources and whistleblowers. That report rests whistleblower protection, as a matter of human rights law, on the individual’s right to receive information of public interest. The groundbreaking Tshwane Principles on National Security and the Right to Information (particularly Part IV) lay out a careful way of thinking about whistleblowing in national security sectors, presenting a framework that is both sensitive to national security protections and promotion of the public’s right to know. The 2015 UNGA report, drawing on widespread consultations, government and civil society submissions, and the Tshwane Principles, concluded that governments should be “prepared to show that the harm to the specific legitimate national security interest outweighs the public interest in disclosure.” The report recognized that governments may sometimes believe it critical to penalize unauthorized disclosures. But even legitimate cases present risks to the public’s right to know, so the report emphasized:
“…limiting the spillover risk of deterring whistleblowing should involve three critical protections. First, in any such action, States should bear the burden of proving that the harm to a legitimate national security interest outweighed the public interest in disclosure. Second, States should provide defendants with the basic tools of defence, including access to the information necessary for a defence, relaxation of secrecy laws in the context of closed court sessions if necessary and the ability to make a genuine case that disclosure’s benefit outweighed the asserted harm. Lastly, in the event of a conviction or penalty, sentences or fines must be proportionate to the underlying act, including taking into account the extent to which the whistle-blower’s disclosure advanced the public interest, even if a court found the harm to national security to outweigh the value of disclosure.
My assessment is that these basic protections are not available to Snowden or to other potential and past whistleblowers in the national security context.
A pardon in this situation offers President Obama an opportunity to recognize not necessarily that Snowden was right, something I suspect he is reluctant to do. Instead, it is a necessary acknowledgment of something more fundamental – that the United States’ basic framework for whistleblower protection in intelligence and national security contexts does not protect the public’s right to know. It would allow him to acknowledge that U.S. law fails to protect internal reporting of all sorts of wrongdoing; to protect honest reporting to oversight bodies; and to advance the public’s genuine interest in government accountability.