by Anthony D. Romero
Executive Director, ACLU
As a whistleblower of illegal government activity that was sanctioned and kept secret by the legislative, executive, and judicial branches of government for years, he undertook great personal risk for the public good. And he has single-handedly reignited a global debate about the extent and nature of government surveillance and our most fundamental rights as individuals.
Monday’s court ruling declaring the NSA surveillance program unconstitutional highlights the irony of the government’s prosecution of Snowden. For more than 12 years, the ACLU has raised concerns about the massive changes occurring in our democracy: the rubber stamping of expansive surveillance powers by the judiciary, the clandestine nature of programs that invade the rights and lives of millions of Americans with virtually no oversight, and the quiet acquiescence of a public that believed that individuals had nothing to fear if they had done nothing wrong.
That was true until Snowden awakened the American people – and others across the globe – from complacent lethargy. For his actions, Snowden should be applauded, not vilified. He should be granted full immunity from prosecution. And he should be allowed to resume his life in the United States as a proud American citizen.
Let’s unpack the arguments that are surely rifling through many Americans’ minds as to why Edward Snowden should not be granted immunity and allowed to return home.
First, many thoughtful observers note that Snowden has revealed important facts about an otherwise clandestine program, but wonder why he took it upon himself to bring his evidence to journalists rather than to Congress or the executive branch. The simple answer is that Snowden was too smart to expect real results from the “official” channels. Since September 11, 2001, Congress and the courts have failed miserably at providing constitutional oversight. When the New York Times finally found the courage to expose the earlier NSA spying program in 2005, Congress responded by legitimizing and extending this illegal program through the FISA Amendments Act of 2008. The courts proved little more vigorous in their willingness to serve as a meaningful check on such surveillance programs. Two different lawsuits brought by the ACLU – one in Detroit and one in New York that went all the way to the U.S. Supreme Court – were dismissed because it was impossible to prove that our clients were in fact targeted by these secret government surveillance programs. Absent such proof, which the government was never going to provide, no American would be in a position to challenge the government surveillance programs. As 1Justice Sonia Sotomayor asked Solicitor General Don Verilli in our Clapper litigation: “General, is there anybody who has standing?” In disclosing these documents Snowden took the patriotic route, knowing that nothing short of public release would get the attention of the American people, our government and our allies. He didn’t turn to the normal, government channels to raise his concerns of illegal government activity because he knew that others had used those channels and failed. Fortunately, both the courts and Congress seem to have renewed vigor in looking into the constitutionality of NSA surveillance – but such vigor is a direct result of Snowden’s revelations.
The second argument against immunity goes something like this: “He was employed by the government. He knew he was breaking the law. He should have stayed home and faced the music if he was truly well-intentioned.” If Snowden had stayed in Hawaii after his first revelations became public, the government would have arrested him that very day. The laws that are being used against Snowden do not distinguish between patriotic whistleblowers and foreign agents. It would be a true miscarriage of justice if the government succeeded in imprisoning for life a person who revealed unconstitutional government conduct. Snowden would surely have been subjected to “special administrative measures” and would have been prevented from working with the journalists or engaging the broader public debate. Snowden knew that he couldn’t stay in the U.S. and ignite the public debate that he felt was missing – so he forsook his homeland to further American democracy.
A third argument – often read in The Wall Street Journal editorial pages – questions the authenticity of his motivations by the countries in which he received refuge. If Snowden were such a true believer in democracy, he would never have traveled to China or Russia. That argument fails to recognize the massive power of the American government to lean on other governments to repossess one of its most wanted. Recall the full court press that the American government made through the efforts of President Obama and Secretary Kerry to ensure that Snowden had no other door except one to an American federal prison. Even those countries that have voiced outrage at the NSA surveillance of their leaders and citizens – Germany, Brazil, Mexico – have failed to offer political asylum to the man who uncovered it. Their hypocrisy and capitulation to American diplomatic strong-arming left Snowden with little recourse but to receive help from governments that may have their own agendas in housing someone wanted by the United States.