Does it hurt anyone else’s head to think about what to do with Edward Snowden? According to F. Scott Fitzgerald, “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Unfortunately, first-rate intelligence is half the mental equipment necessary to puzzle out the recent suggestion that the former NSA contractor be given amnesty in exchange for keeping undisclosed U.S. government secrets in his possession under seal.
Up to the challenge? Try holding these four very reasonable statements in your mind at once: The NSA deserved to be publicly exposed for its secret abuse of power and disregard for the Constitution, Snowden deserves to be punished for publicly exposing NSA secrets, the amnesty deal would be good for U.S. foreign relations and national security by plugging the Snowden leaks, and the amnesty deal would be bad for U.S. foreign relations and national security by encouraging future leaks.
The idea of granting Snowden amnesty arose recently when Rick Ledgett, the NSA official who runs the task force responsible for assessing the ongoing damage of Snowden’s leaks, told 60 Minutes that negotiating a deal makes some sense. Snowden claims that before fleeing to Russia he gave his cache of state secrets to reporters and kept no copies for himself. But U.S. government officials believe Snowden has access to up to 1.5 million documents. Whatever the case, the 30-year-old former contractor has said he’d return to the U.S. if given amnesty.
For its part, the White House has tried to torpedo an amnesty debate before it’s had a chance to begin in earnest. Hidebound NSA chief Gen. Keith Alexander, also appearing on 60 Minutes, likened the Snowden amnesty proposal to negotiating with a terrorist. “This is analogous to a hostage-taker taking 50 people hostage, shooting 10 and then saying, ‘If you give me full amnesty, I’ll let the other 40 go.’”
The irony of Alexander’s analogy is that in the wake of Snowden’s disclosures, Americans reported being more worried about the NSA abusing their civil liberties than being the victim of a terrorist attack. Asked whether Snowden is a patriot or traitor, a quarter of American respondents said they didn’t know. Even Snowden himself demurred, “I’m neither traitor nor hero. I’m an American.” This is undeniably tough stuff to parse. The law, in its role as the arbiter of clear-cut sanctions, cannot be easily molded to ambiguous questions at the intersection of civil liberties, national security and the public’s right to know.
Each side of the debate has loyal apparatchiks who have reduced an issue of kaleidoscopic complexity to monochromatic simplicity. The problem with one side issuing absolute prescriptions, however, is that both Snowden and the government appear to have broken the law. Snowden faces up to 30 years in prison for one charge of stealing government property and a pair of charges under the Espionage Act. On Monday federal judge ruled the NSA methods exposed by Snowden likely violate the Fourth Amendment’s bar on unreasonable search and seizure.
So it’s important to remember any amnesty arrangement would amount to a handshake between two unclean hands. The principle of retributive justice suggests neither side should get everything it wants. In broad terms, for the government, that means exercising prosecutorial restraint until it has reestablished its own adherence to the rule of law. For Snowden, that means agreeing to a conviction with a reduced or suspended sentence, conditioned on his guarantee that no future leaks spring from his purloined payload.
I’ll leave it to someone with a double dose of first-rate intelligence to suggest the specifics of an amnesty agreement. But at the very least, the right deal would tacitly acknowledge Snowden’s role in pushing back the pendulum that swung too far toward the state and away from civil liberties post-9/11, while proscribing his specific conduct. Ideally it would spur Congress to act to reverse the culture of over-classification and set reasonable penalties to deter future illegal leaks that could seriously damage national security, while protecting legitimate whistleblowers. In this way a Snowden-U.S. truce presents yet another paradox: An amnesty deal between two scofflaws may do wonders for the rule of law.
Ancient Greeks had a word for the irresolvable mental contradiction that led to brain gridlock: they called it aporia, and Socrates was notorious for inducing it in fellow Athenians. They eliminated their source of aporia by force-feeding him hemlock. The attorney general has said that’s too extreme a solution in Snowden’s case. But if amnesty with strings attached will eliminate our aporia and make our headache go away, we should seriously consider it.