Former intelligence contractor Edward Snowden poses for a photo during an interview in Moscow, Dec. 2013. 
Barton Gellman/Getty Images

The Snowden-Obama amnesty double standard

Updated

Many people otherwise inclined to concur with the New York Times op-ed page and support President Barack Obama may disagree with the paper’s call for leniency for Edward Snowden

“Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service,” the paper editorializes. “It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.”

Opponents of leniency for Snowden would likely argue that, even if his exposure of the breadth of the National Security Agency’s metadata program was in the public interest, other disclosures–such as revelations regarding Russian and Chinese targets of American surveillance–were not. They might also argue that Snowden clearly committed a crime in absconding with and leaking classified documents and should be punished for it. Some former intelligence and national security officials are convinced Snowden has been compromised by foreign intelligence agencies–something Snowden himself has strenuously denied.

Yet the argument that Snowden’s allegedly straightforward violation of the law should mandate punishment is undermined by the Obama administration’s very conduct in office. Since the beginning, the Obama administration has adhered to a double-standard when it comes to violations of the law by national security officials, punishing those that arouse the ire of the national security establishment while looking the other way when the law is broken in pursuit of their goals. 

Before even taking office, Obama indicated publicly that he was unwilling to look into prosecution of Bush-era officials for their role in crafting torturous interrogation policies, saying he would look into whether “someone had blatantly broken the law” but that he possessed ”a belief that we need to look forward as opposed to looking backwards.” A probe initiated by Attorney General Eric Holder ultimately examined only lower level intelligence officials, and only in those cases where torture had gone beyond the limits proscribed by the Justice Department. Not only did the probe end without any prosecutions, but CIA officials involved in the so-called “enhanced interrogation program” have seen their careers advance within the Agency. Beyond prosecution, the Obama administration has fought lawsuits in civil court by former detainees seeking restitution for their mistreatment.

Obama supporters could argue that anything more than that might have sidelined Obama’s first term agenda permanently, to the point where there wouldn’t be an Affordable Care Act. Still, we needn’t look back that far for more examples of the Obama administration “looking forward” on possible violations of the law when they’re done in the interest of the intelligence community. Obama officials leak to journalists all the time when they’re trying to shape coverage, but they’re only prosecuted if, like former NSA executive Thomas Drake, their disclosures anger the intelligence community.

Obama’s intelligence chief, James Clapper, admitted to misleading Congress when asked a direct question by Oregon Democratic Senator Ron Wyden about whether the NSA “any type of data at all on millions or hundreds of millions of Americans.” It’s against the law to lie to Congress, but when White House Press Secretary Jay Carney was asked about Clapper’s statement, Carney said in June that Obama “certainly believes that Director Clapper has been straight and direct in the answers that he’s given.” The smart money is on Clapper never having to seek asylum in Russia to avoid prosecution. 

Leniency for Snowden may not be as far-fetched as it sounds. Already NSA official Richard Ledgett floated the idea of amnesty for Snowden in exchange for securing the rest of his data in an interview with CBS, although his overture was promptly shot down by the administration. Anne-Marie Slaughter, a former high ranking official in the State Department during the Obama administration, tweeted that she agreed with the New York Times editorial. Even if they don’t support what Snowden has done, some government officials might be inclined to strike a deal if they believe that it could somehow mitigate the damage they believe Snowden has caused. 

If the Justice Department did strike some kind of deal with Snowden, it certainly wouldn’t be the first time that the Obama administration has allowed a former member of the intelligence community to escape punishment for allegedly violating the law. It would just be one of the few times the Obama administration was willing to “look forward” when the intelligence community wasn’t. 

Jansing & Co. , 1/2/14, 11:13 AM ET

Rep. Rush Holt: Prosecute Edward Snowden 'with leniency'

Rep. Rush Holt, D-N.J., tells msnbc’s Richard Lui that NSA leaker Edward Snowden should be prosecuted, but “with leniency.”

Edward Snowden and NSA

The Snowden-Obama amnesty double standard

Updated