Paper written to present a case for Edward Snowden's clemency, an assignment completed for a Business Ethics course.

1. Margaret Hoisington 2/11/2014
Argument in Favor of Clemency for Edward Snowden
Within recent years, the development of information technology has created a
growing conflict between privacy rights and national security, presenting major
challenges to the United States legal system. The use of modern technology allows the
United States government to gather enormous amounts of intelligence, a valuable tool in
the investigation, prevention and prosecution of criminal or terrorist behavior. However,
public opinion varies on how constitutional law applies within this context and the
potential exists for government abuse of power. These are the issues at the center of
Edward Snowden’s leak of NSA documents, classified information that he had access to
while working for the National Security Agency (NSA) in Hawaii through subcontractor
Booz Allen Hamilton. He was employed through Booz Allen for less than three months,
during which he collected top-secret NSA documents related to the agency’s domestic
and international surveillance programs. He believed that these leaks would expose
constitutional violations of the NSA to the public and hopefully prompt reform that
would lead to increased government transparency.
The Government Accountability Program (GAP) defines whistleblowing as the
disclosure of information that is reasonably believed to be evidence of a violation of any
law, rule, regulation, gross mismanagement, gross waste of funds, abuse of authority or
substantial and specific danger to public health or safety (McCutcheon, 2014). Although
many of the violations that Snowden intended to expose remain under investigation or
considerable debate, at least some of them have been confirmed. In March 2013, the
Director of National Intelligence, James Clapper, stated before Congress that the NSA

2. had not intentionally collected information on ordinary Americans, which Snowden knew
was not true at the time (Greenberg, 2013). Whether or not it is decided that the NSA’s
domestic surveillance is violates the constitution, it is clear from the information leaked
that Clapper had lied under oath. If the intelligence community director is known to have
lied in a public forum on at least one occasion, the credibility of both the director and the
agencies can be questioned during other instances as well. In December 2013, U.S.
District Judge Richard Leon ruled that the NSA’s telephone snooping violated the
constitution (Savage 2013) but then weeks later, U.S. District Judge William Pauley ruled
that the collection of phone records was legal under Section 215 of the Patriot Act (Perez,
2013). This sparked considerable debate on whether the collection of the phone data is
constitutional, prompting movements to amend the act to prevent further abuses in
violation of First and Fourth Amendment rights. Snowden’s actions provided a catalyst
for these debates and the demands for reform but they have yet to directly result in any
clearly measurable threat to the security of the United States.
Although the disclosures made by Snowden fall within the definition of
whistleblowing, whistleblower rights are more limited for federal intelligence agency
employees in order to prevent unauthorized disclosures of information that could pose a
threat to national security. The Intelligence Community Whistleblower Protection Act of
1998 (ICWPA) provides a process for federal agency employees to submit urgent
concerns to Congress with protection from retaliation and to ensure that classified
information and materials are properly handled. The law defines “urgent concern” as any
serious problem, abuse, violation of law or Executive order relating to the operations of
an intelligence activity involving classified information, false statement to Congress or an

3. action constituting reprisal or threat of reprisal in response to the employee’s report.
However, the GAP has criticized the ICWPA stating that, “It fails to provide substantive
protection against retaliatory personnel action and creates no mechanism for corrective
actions” (Clayton, 2013).
In the early 2000s, former NSA executive Thomas Drake had opposed an NSA
program called Trailblazer because of its violation of privacy and other laws, causing him
to complain internally as outlined by the ICWPA. By 2004 Trailblazer had been deemed
an expensive failure and the Department of Defense acknowledged the problems at NSA
but nothing was reported to the public. In 2010, Drake was indicted for violations of the
Espionage Act after he disclosed information in 2005 to a reporter about fraud and abuse
at the agency. The case never went to trial and the parties reached a plea agreement in
which Drake was sentenced to one year of probation and 240 hours of community service
(Wise, 2011). Snowden has stated that he first attempted to deal with the issues through
the internal route and that he made a considerable effort to get those with the proper
clearance to listen and take action. His attempts generated concern from the coworkers
and supervisors he spoke with but no one was willing to take on the personal risk
associated with pursuing the matter further. Snowden had been witness to behavior such
as Clapper’s lie to Congress and knew what resulted when Drake attempted to use the
procedures of ICWPA so he was aware that any attempts to address his concerns
internally would most likely fail to elicit any solutions.
The United States has filed charges against Snowden for theft of government
property and violation of the Espionage Act by unauthorized communication of national
defense information and willful communication of classified communications intelligence

4. information to an unauthorized person (Zakaria & Hosenball, 2013). The Espionage Act
was passed in 1917 to make it a crime for foreign or domestic spies to provide
information in an attempt to harm the U.S. or to help its enemies. Before the current
administration it had only been used six times as a way to prosecute leaker but Snowden
is the eighth person to be charged under the Espionage Act in this way since the start of
the Obama administration alone (Caplan, 2013). In United States v. Morison, 488 U.S.
908 (1988) the act was used for the first time to convict a government official for giving
classified information to the press, although Morison was later pardoned in 2001. In this
case the court stated that, “the government must still be required to prove that it was in
fact “potentially damaging to the United States or might be useful to an enemy”, but in a
July 2013 ruling, US District Court Judge Kollar-Kotelly disagreed with that precedent,
saying that the terms of the act do not require proof of any harm (Kim, 2013). Snowden’s
intent in making the disclosures and whether or not they resulted in any real danger or
were of value to the public would therefore be inadmissible in court against violations of
the Espionage Act.
In 2013, Federal District Judge Richard Leon’s ruling in Klayman v. Obama
required the government to stop collecting data on the personal calls of the plaintiffs and
to destroy records of their call history, stating that the NSA program of collecting records
of phone calls is most likely a violation of the Constitution. He wrote that the government
wasn’t able to provide “a single instance in which analysis of the N.S.A.’s bulk metadata
collection actually stopped an imminent attack, or otherwise aided the government in
achieving any objective that was time-sensitive” (Savage, 2013). The precedent set by
Smith v. Maryland, 442 U.S. 735 (1979) is that there is no reasonable expectation of

5. privacy for information supplied to third parties, which was what excluded the NSA
collection of metadata from protection by the Fourth Amendment. Leon writes that a
decision from 1979 does not apply today given that the evolution of our relationship with
phones results in telephone metadata that contains more information and that modern
technology allows the Government to store and analyze that information in ways that
qualify it as an unreasonable search .
Actions taken by the Government in the events leading up to and surrounding
Snowden’s leaks are grounds upon which it can be charged with violating the First
Amendment. The United States is a self-governing society in which the power to decide
on issues of public policy belongs to the citizens and to make these decisions it is
necessary for them to be able to access all related information without the interference of
the government. In New York Times co. v. United States, 403 U.S. 713 (1971), which
involved use of the Espionage Act, the court stated that, “the guarding of military and
diplomatic secrets at the expense of informed representative government provides no real
security for our Republic.” More recently the court has also said that, “state action to
punish the publication of truthful information seldom can satisfy constitutional
standards.” Bartnicki v. Vopper, 532 U.S. 514 (2001). If the government cannot
demonstrate a compelling need to enforce punishment of the disclosures in order to
protect national security, they have violated the First Amendment by restricting access to
that information and by seeking retribution for the person who exposed it. Within this
case, the Government violations of First Amendment rights carry more weight than a
claim of the potential threats to national security. The level of public debate over the

6. statutes that are at the center of this case would make them an inappropriate basis for the
prosecution of Snowden and therefore he should be granted clemency.

7. References
Edward Snowden. (2014). The Biography Channel website. Retrieved from
http://www.biography.com/people/edward-snowden-21262897
Caplan, Lincoln. (2013) "Leaks and Consequences: Why Treating Leakers as Spies Puts
Journalists at Legal Risk." The American Scholar 82.4: 20+. Academic OneFile.
Web. 7 Feb. 2014.
Clayton, Mark. (June 2013). “Edward Snowden: Whistleblowing protections most likely
won’t help.” Christian Science Monitor. Retrieved
fromhttp://www.csmonitor.com/USA/Justice/2013/0614/Edward-Snowden-
Whistle-blowing-protections-most-likely-won-t-help/(page)/2
Greenberg, Andy. (July 2013). “National Intelligence Director Clapper Apologizes.”
Forbes. Retrieved from
http://www.forbes.com/sites/andygreenberg/2013/07/02/national-intelligence-director-
clapper-apologizes-for-clearly-erroneous-congressional-testimony-on-nsa-
surveillance/
Kim, Douglas. (August 2013). “US District Court Judge Suppresses Whistleblower
Protections in Favor of Government Secrecy.” Government Accountability
Project. Retrieved from
http://www.whistleblower.org/blog/44-2013/2869-us-district-court-judge-suppresses-
whistleblower-protections-in-favor-of-government-secrecy
McCutcheon, C. (2014, January 31). Whistleblowers. CQ Researcher, 24, 97-120.
Retrieved from http://library.cqpress.com/cqresearcher/
Savage, Charlie. (December 2013) “Judge Questions Legality of NSA Phone Records.”
New York Times. Retrieved from

8. http://www.nytimes.com/2013/12/17/us/politics/federal-judge-rules-against-nsa-phone-
data-program.html?pagewanted=1&_r=1&
Perez, Evan. (December 2013) “Judge Rules NSA Collection of Phone Records is
Legal.” CNN. Retrieved from
http://www.cnn.com/2013/12/27/justice/nsa-ruling
Wise, David. (August 2011). “Leaks and the Law: The Story of Thomas Drake.”
Smithsonian Magazine. Retrieved from
http://www.smithsonianmag.com/history/leaks-and-the-law-the-story-of-thomas-drake-
14796786/?all
Zakaria, T., Hosenball, M. (June 2013). “Edward Snowden Charged with Espionage Over
NSA Leaks.” Huffington Post. Retrieved from
http://www.huffingtonpost.com/2013/06/21/edward-snowden-charged_
n_3480984.html