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Begging Pardon

Edward Snowden and the doctrine of preemptive amnesty

Edward Snowden himself has never directly asked for a pardon. The former NSA contractor and CIA employee-turned-whistleblower maintains that he would be willing to return home from Moscow to be judged by a jury of his peers, and even serve time in prison, if there were a chance of a fair trial. This is next to impossible given that he is charged under the Espionage Act of 1917, a law written to apply to World War One–era spies, not modern-day whistleblowers, and one that renders the motivations and intentions of defendants inadmissible during trial. (Is a person sacrificing by sharing confidential information with a journalist to benefit their fellow citizens or attempting to profit by selling it to foreign adversaries? The Espionage Act does not distinguish.) Yet Snowden’s own reluctance didn’t stop a group of his supporters from publishing a letter in September asking President Obama to use his swiftly waning presidential authority to wipe the slate clean. They argue that Snowden performed a public service when he leaked documents revealing the government’s astonishing digital surveillance apparatus to the press, triggering crucial congressional and corporate reforms. On Friday, Obama—whose office has charged more whistleblowers under the Espionage Act than all prior administrations combined—indicated that Snowden would not be pardoned, because “I can’t pardon somebody who hasn’t gone through a court.” But actually he could, and reminding the public of that fact was one of the aims of the open letter.

With the recent election, the campaign to pardon Snowden takes on new urgency. Obama is preparing to hand over the reins of his imperial presidency and vast national security apparatus to Donald Trump, a man who calls Snowden a traitor and whose primary political relationship is with Vladimir Putin, a bizarre bromance that puts the whistleblower at heightened risk of extradition or worse. Trump loves making deals, and nabbing Snowden would be a big one. His inner circle is onboard with the mission: Michael Flynn, tapped as National Security Advisor, oversaw a hyperbolic and unsubstantiated Defense Intelligence Agency report lambasting Snowden, and the current pick for head of the CIA, Mike Pompeo, has called for his execution. Given our president-elect’s secretive, autocratic tendencies—including his deep animosity toward journalists, protesters, Muslims, immigrants, and others—whistleblowers and leakers will be more important than ever, flickers of truth and light in the dark age ahead. Now is the time for Obama to remind citizens of this fact.

It would be entirely in keeping with tradition to do so. Pardoning is part of any president’s job, as the bizarre spectacle of the commander in chief sparing the lives of two lucky turkeys each autumn reminds us. But even this silly ritual tells us something about the twisted and uneven nature of American justice. While the first turkey reprieve was an act of spontaneous benevolence (Abraham Lincoln’s young son Tad had grown fond of a bird destined for Christmas dinner), today’s turkeys, like their human counterparts, need a well-funded lobbyist to get a break. The National Turkey Federation, a trade association, manages the event, annually wrangling the White House into the elaborate and pointless publicity stunt, its chairman typically picking two birds from a corporate supplier based in his home state. Tellingly, it was Ronald Reagan, in 1987, who first used the word “pardon” at one of these Rose Garden ceremonies-cum-influence-peddling-opportunities. “I would have pardoned him,” Reagan said, pointing to the turkey, jokingly dodging a journalist’s serious question about whether he planned to officially absolve his former aides, Oliver North and John Poindexter, then embroiled in the Iran-Contra scandal.

Pardons, whether of birds or people, are rarely untainted affairs. Money, connections, and expediency all play a role in a process that, at least in theory, has the potential to become even more idiosyncratic and expansive than it currently is, since there are few legal limits on presidential forgiveness. Article II, Section 2 of the U.S. Constitution grants sitting U.S. presidents the power to exonerate anyone they like: “He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Generally speaking, there are two acknowledged modes of pardoning, of exempting individuals from punishment for a crime. (A pardon, to be clear, does not require nor imply innocence.) The first is more quietly bureaucratic and administrative, running through the established channels at the Department of Justice or state-level pardon boards, like the commutation of the sentences of hundreds of drugs offenders during Obama’s final year in office. The second has to do with high-profile cases that are also being played out in the court of public opinion, as with Edward Snowden. But there is also a third, entirely silent mode that must be properly recognized and named, the hush surrounding it all the eerier when contrasted with the raucousness of the discussion about whether or not to pardon someone like Snowden. These are pardons that are never acknowledged as such, which stem from something that, in homage to George W. Bush’s doctrine of preemptive war, we could call “the doctrine of preemptive amnesty.”

Today’s political and financial elites—Bush and Obama officials who commit war crimes, or the bankers who brought about the economic crisis in 2008, for example—are not granted formal pardons, since few ever stand officially charged or convicted of crimes in the first place. Typically, only disposable minions, the lowly soldiers following orders or lonely mortgage brokers hustling to make commission, suffer the indignity of being indicted. And so, despite laws broken and lives ruined, the top brass and big shots go about their business unsanctioned with few exceptions, welcomed in corridors of power, feted at cocktail parties, and invited to spout self-interested opinions on cable television or enjoy a cushy chair on an executive board, excused from prosecution and punishment under the protection of the sitting president.

No Death to Tyrants

In demanding impunity for themselves, our leaders have veered dramatically from early models for collective pardoning, which centered on social cohesion, not elite collusion. In the year 403, after the short oligarchic reign of the Thirty Tyrants, the Spartan king Pausanias negotiated peace with the city-state of Athens, and helped restore democracy. Pausanias compelled the Athenians to take an oath of amnesty—an oath of not remembering. The exoneration applied to everyone with two exceptions: the tyrants themselves and their police enforcers. Regular citizens, regardless of their previous allegiances, were given a free pass and instructed to forget. Bygones would be bygones to help minimize civil strife and allow neighbors formerly in opposing camps to live side by side. Pausanias recognized that a kind of intentional group-amnesia was necessary for the citizenry to survive as a unit. It is the first recorded example of general amnesty in human history.

Early models for collective pardoning centered on social cohesion, not elite collusion.

In early America, the founding fathers reserved the power of pardoning for presidents, but not because they wanted to get themselves and their henchmen out of hot water. According to Alexander Hamilton in The Federalist Papers, this holdover from monarchical days was necessary to restore peace during periods of upheaval or unrest. “In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth,” he wrote. “If suffered to pass unimproved, it may never be possible afterwards to recall.” This logic was put to the test in the early days of the republic after the Whiskey Rebellion. President George Washington initially called in 13,000 troops to quell opposition to a 1791 tax on spirits, but by 1795 all those who participated “in the wicked and unhappy tumults and disturbances lately existing” were pardoned. In the next century, a mass amnesty would be granted to soldiers of the Confederacy despite the fact they had committed treason against the United States (meanwhile, the human beings who had been held as slaves were not even offered an apology, let alone more substantive amends like reparations). Forgiveness was the price to be paid for moving on as a nation.

In 1974, in the most recent American case of mass forgiveness not associated with immigration policy, Gerald Ford granted conditional amnesty to about 15,000 Vietnam War deserters and dodgers. (Jimmy Carter would upgrade this to an unconditional pardon for draft dodgers on his first day in office.) But like Reagan deflecting with his quip about pardoning the Thanksgiving turkey, Ford’s was a move at least partially calculated as a decoy. He wanted to distract attention from the fact that he had pardoned his disgraced predecessor Richard Nixon, a man the public was in no mood to exonerate. That controversial indulgence transformed the nature of presidential pardons and ushered in the contemporary era of elite immunity. According to lawyer and journalist Glenn Greenwald in his book With Liberty and Justice for Some—published two years before he and Oscar-winning filmmaker Laura Poitras broke the Snowden story—Ford’s absolution of Nixon pioneered a new assault on the rule of law, bestowing a “lawbreaking license” for those occupying key positions of influence at precisely the moment our legal system became more punitive for average people and the problem of mass incarceration began to blow up. That’s when the modern doctrine of preemptive amnesty was born.

Off the Record

Presidents clearly have an incentive to shield their predecessors and peers from prosecution lest they eventually be prosecuted themselves, which is why the arrangement is fully bipartisan. What’s a little forgiveness between friends—or more accurately, solidarity amongst people who are members of the same arrogant, entitled class? Ford pardoned Nixon; George H. W. Bush shielded the Iran-Contra criminals; and Democrats, too, have played their part in covering up Republican crimes, anticipating that their turn would one day come. Directly contradicting campaign promises, Bill Clinton declined to investigate the elder Bush’s role in illegally supplying Saddam Hussein with money and weapons. Fifteen years later, Obama adopted a similar tack. “Obama Reluctant to Look into Bush Programs” reported the New York Times when, less than two weeks before the hope-and-change candidate’s inauguration, he backed down from high-minded talk about holding the younger Bush’s administration accountable for illegal activities associated with the War on Terror, including warrantless domestic surveillance first exposed in 2005, the torture of detainees, and the existence of secret CIA prisons known as “black sites.” And Obama, who himself has raised the ire of human rights advocates with his legally ambiguous “kill lists” and drone assassination programs, has gone further than simply not probing past misconduct; he has used his presidential power to hamstring congressional committees, international tribunals, and courts investigating the previous administration’s wrongdoings.

Trump presented himself as a whistleblower of political corruption, but he would still sacrifice the real thing.

Torture is the most visceral, disturbing example. (And it is an issue Trump, bucking trends, stumped on: “Torture works. . . . And waterboarding is your minor form. Some people say it’s not actually torture. Let’s assume it is. But they asked me the question: What do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding.” ) While Ford’s pardon of Nixon was questionable on a moral level, it accorded with the Constitution, but Obama’s de facto pardons directly contradict national and international law, namely the Geneva Conventions and the Convention Against Torture, which obligate signatories to prosecute officials who violate them. Though Obama will be remembered for glibly admitting, “We tortured some folks,” at the time of the 2014 release of the Senate Intelligence Committee Report on torture, even more troubling was his justification for not authorizing prosecutions, despite overwhelming evidence of abuse, including sleep deprivation, stress positions, sexualized humiliation, “rectal feeding,” isolation, waterboarding, and other horrors. “It’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had,” the president rationalized. “A lot of those folks were working hard under enormous pressure and are real patriots.” In a Slate column, University of Chicago Law School professor Eric Posner defended Obama’s position with the common refrain that indictments would “criminalize” the everyday practice of politics and should be avoided. Justice would be better off not being served! “When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.”

That’s how things go in America. Blatant cronyism has to be dressed up in grandiose rhetoric about patriotism, democracy, healing, moving on, and the common good. “Our long national nightmare is over,” Ford famously said of his decision to pardon his former boss, when in fact it was Nixon’s personal nightmare that had been averted. It would be a divisive, unnecessary ordeal to give Nixon a dose of his own “law and order” medicine, he contended, as though it was somehow the entire country that was being offered a generous reprieve. Obama took a page from the old script. When asked again, on television in 2009, whether he would investigate the crimes of the Bush era, he demurred: “My general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed to looking at what we got wrong in the past.” Three months later, in a statement responding to the release of Office of Legal Counsel memos about the interrogation techniques used on terrorism suspects, Obama provided another variation on the theme:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Lock Them Up

By insisting on preemptive amnesty for their crimes, today’s elites have turned the wisdom behind pardoning on its head. Where Pausanias penalized the oligarchs while forcing citizens to forgive each other, the powerful currently demand we blank out any memory of their copious misdeeds while they also foster resentment and enmity among the people. Fingers are pointed at Muslims and desperate refugees are painted as potential terrorists, when those who led the United States into the botched and hubristic wars in Afghanistan and Iraq—destabilizing the region and displacing millions while creating a breeding ground for ISIS—enjoy the absolution that flows from forgetfulness. This July, in a leaked email exchange, former British Foreign Secretary Jack Straw expressed relief to former Secretary of State Colin Powell that the British government’s official inquiry into its role in the Iraq War, the Chilcot Report, would be overshadowed by the UK’s imminent referendum on EU membership: “The only silver lining of the Brexit vote is that it will reduce medium-term attention on Chilcot—though it will not stop the day of publication being uncomfortable,” wrote Straw. A month later, Powell serenely replied that the report had “faded away in the avalanche of other news” and “didn’t amount to anything.” Powell, no doubt, would rather not linger on the fact he helped push the United States into Iraq by avowing the existence of imaginary weapons of mass destruction in what his former chief of staff Lawrence Wilkerson has described as a “hoax on the American people, the international community, and the United Nations Security Council.” If you are a war criminal, the public casting a backwards glance does not feel particularly good—though it cannot be nearly as painful as being waterboarded.

“Our long national nightmare is over,” Ford famously said of his decision to pardon his former boss, when in fact it was Nixon’s personal nightmare that had been averted.

Forgetting is connected to forgiving but not one and the same, contrary to what Powell, Straw, and their ilk may hope. True amnesty—and the profound healing that can spring from it—does not result from ignorance but from understanding and deliberation, as various committees for truth and reconciliation have demonstrated. Obsessive remembrance meanwhile—the fixation on isolated events shorn of historical context—can be a way to prevent comprehension, as we saw in the wake of 9-11. When the mass surveillance infrastructure Snowden would eventually expose was being put into place, the national slogan was “Never forget,” a phrase sometimes coupled with its darker foil, “Never forgive.” Americans were instructed to hold on to the moment the twin towers fell, an image so vivid it could be invoked to eclipse everything that happened before and after. The careers of a cohort of war criminals—Colin Powell, Dick Cheney, Donald Rumsfeld, Henry Kissinger, Condoleezza Rice, Cofer Black, John Rizzo, David Addington, Paul Wolfowitz, Jay Bybee, John Yoo, Paul Bremer, Karl Rove, George Tenet, John Brennan, Stanley McChrystal, David Petraeus, Michael Chertoff, Mike Morell, the list goes on—depend on visions of violence and the fear they inspire to overwhelm our senses and faculties. A few of those individuals have suffered slight reputational damage in recent years (Powell has called his infamous WMD speech to the United Nations Security Council a “blot” on his record), but most continue to advance professionally and amass greater fortunes thanks to Washington’s revolving door, and all are still welcomed in polite company—or to be more precise, in presidential company.

Indeed, some of the people on that list held key positions through the Obama administration, and others, including Kissinger, McChrystal, Chertoff, Morell, Brennan, and Petraeus (who made headlines for leaking classified information to his lover and got off with a misdemeanor charge, two years of probation, and a fine), belonged to Hillary Clinton’s inner circle of esteemed national security advisors. Hillary Clinton would also have surrounded herself with known convicts and torture program masterminds had she won the presidency, yet she believes Edward Snowden shouldn’t be allowed to come home “without facing the music.” While Donald Trump was able to tap into the public’s anger about the botched war in Iraq and rally his followers with calls to “drain the swamp,” his victory may turn out to be a second chance for neoconservatives, a “do-over” for former Bush aides in the words of the Washington Post. And though Trump presented himself as a whistleblower of political corruption, he would still sacrifice the real thing: “A spy in the old days, when our country was respected and strong, would be executed,” Trump tweeted about Snowden in 2014. There’s no reason to believe he’ll flip-flop on that front.

If the political class, irrespective of party affiliation, despises Snowden, it is because he jogs our collective memory and challenges their version of events. His very presence, however remote he may be physically, reminds us that history could have taken another course, that the War of Terror has been a deadly failure used to trample our civil liberties, and that those who perpetuated these offenses remain in power. Snowden has refused to accept the clichéd narrative of an activist who is demonized by the state only to be rehabilitated as a hero decades later when he is no longer a threat (perhaps with a posthumous statue or avenue named in his honor). By pushing for his right to speak now—on film, in the media, over Twitter, and via the Snowbot—he calls out the unspoken covenant of political elites who are all comfortably pardoned, having effectively exonerated themselves of any crimes in advance, though they would never admit that is what has transpired.

The Ballad of Michael Hayden

Michael Hayden, the former director of the National Security Agency under Bill Clinton and director of the Central Intelligence Agency under George W. Bush, may qualify as Snowden’s nemesis. In this new topsy-turvy world we have entered, where a reactionary reality television star is about to become the leader of the free world, Hayden briefly began to sound sane. Over the last year he harshly criticized Donald Trump’s competence, called out his authoritarian streak and imperviousness to facts, dubbed him Russia’s “useful fool,” and even voted third-party in protest. But like other establishment figures, in the wake of the election’s result, he appears to be trying to figure out how to play nice with the president-elect. Even as a “sense of dread” reportedly falls over the intelligence community as an ill-informed and impulsive mogul takes the nation’s helm, there’s no sign Hayden or his colleagues will rethink their harsh condemnation of Edward Snowden—who, along with a handful of other leakers and journalists, can be credited with revealing to the public, or at least the portion of the electorate paying attention, just how much unchecked power Trump is inheriting.

“If Snowden really claims that his actions amounted to genuine civil disobedience, he should go to some English language bookstore in Moscow and get a copy of Henry David Thoreau’s Civil Disobedience,” Hayden bitingly recommended in the Guardian, soon after the campaign promoting a pardon was announced. “Thoreau points out clearly that civil disobedience gets its moral authority by the willingness to suffer the penalties from disobeying a law, even if you think that law is unjust.” Never mind, of course, that Hayden has a record of ignoring and misrepresenting laws he finds inconvenient, including defending torture programs (in appropriately distorted language: “I mean, torture is a legal term. Now, there are some things that are illegal that are not, that are not torture. And so we cloud the debate when, when we throw the word torture out there, I think, in a far too casual way”). Never mind that Hayden misled Congress about the illegal surveillance apparatus he was overseeing (as then-Senator Barack Obama put it in 2006: Hayden’s the “architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight . . . a program that is still accountable to no one and no law”). And never mind that former attorney general Eric Holder described Snowden’s revelations as “a public service” that “[raised] the debate that we engaged in and by the changes that we made,” a debate that even Obama acknowledged “will make us stronger.”

Hayden, in his belief that people like Snowden should “face the full force of the law” (or, better yet, as he once snarkily implied, find his name on the kill list) while people like him remain above it, missed Thoreau’s deeper point:

Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them? Why does it always crucify Christ, and excommunicate Copernicus and Luther, and pronounce Washington and Franklin rebels?

Thoreau may have spent a legendary night in jail, but he was less concerned with the morality of accepting punishment than the folly of the government persecuting resistors, those individuals Hamilton dubbed insurgents or rebels, who are trying to improve society despite an intransigent opposition. In the present as in the past, dissenters are rarely shown mercy, while the powerful and well-connected pompously let themselves off the hook. Despite his Hillary-for-Prison platform Trump, no doubt, will find this long-established mold fits him just fine, particularly given the fact he is one of a handful of presidents to inspire protests before even taking office. As we enter what may be—or, rather, what must be—a new era of mass civil disobedience against tyranny, we should remember: it is up to us, the people, and to posterity, to judge who the true heroes are, to decide what to forget and who to forgive.