The days leading up to last Friday’s release of director Oliver Stone’s Snowden looked like one long movie trailer.
The American Civil Liberties Union and other human-right groups on Wednesday announced a campaign to win a presidential pardon for Edward Snowden, the former national security agency contract employee who leaked hundreds of thousands of its highly classified documents to journalists. The next day, the House Intelligence Committee released a bipartisan letter to the President that advised him against any pardon and claimed Snowden “caused tremendous damage to national security”.
The week before, Stone had invited me to a private screening of his movie in Washington. I once worked in an NSA facility, and I’ve written about the agency for decades, so I was surprised and pleased by how successful Stone was in creating an accurate picture of life in the NSA.
He did a remarkable job of capturing the sense of how rare, difficult and risky it is for anyone in the agency to challenge the ethics and legality of its operations. I was astounded by Joseph Gordon-Levitt’s doppelganger-like portrayal of Snowden. At one point in the film, when the real Snowden appeared, it took me a moment or two to realise the switch.
The Espionage Act was enacted nearly a century ago following World War I, and has already been amended several times. One key issue confronting the next President and the new Congress is whether the law needs to be amended again — this time to separate the whistleblowers from the spies.
The Snowden screening audience included William Binney, a 40-year veteran of the NSA. After the 9/11 attacks, Binney quit the agency because he objected to its illegal secret targeting of Americans.
He was later suspected of violating the Espionage Act by leaking information to the press about the agency’s illegal wiretapping. FBI agents showed up at his house with a search warrant. One agent pointed a gun at Binney as he was taking a shower. No charges, however, were ever brought.
Another former senior NSA official, Thomas Drake, was in the audience. He was also suspected of leaking information to the press and, as with Binney, the FBI raided his house. But Drake was later charged under the Espionage Act with five counts of unlawful retention of classified documents, among other charges.
Years of legal battles drove Drake into near-bankruptcy. His defence was able to show, however, that all the information Drake was charged with leaking was actually available in the public domain — and placed there by the government itself. As a result, the espionage charges were dropped and Drake pleaded guilty to a misdemeanour — “exceeding authorised use of a government computer.”
Stone came to my house for a drink after the screening that night. He asked about my own small experiences in whistleblowing.
I had spent three years in the Navy during the Vietnam War, I told him, assigned to an NSA unit at Pacific Fleet Headquarters in Hawaii. I was still in the Navy Reserve when I went to law school. During my two weeks of active duty I was assigned to an NSA listening post in Puerto Rico.
While there, I discovered that the agency was conducting warrantless eavesdropping on American phone calls. I later blew the whistle on this to a congressional investigation committee, led by Senator Frank Church, who conducted the Church Committee investigations into US intelligence operations.
Years later, while I was writing The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organisation, the agency threatened me with prosecution under the Espionage Act for refusing to return declassified justice department documents that had later been reclassified as “top secret”. The documents outlined numerous illegal actions by the agency.
I never returned the documents. No charges were ever brought against me, however, even though I eventually published details from them in my book.
Today, perhaps more than at any time in history, the battle lines have been drawn between those in government — both the executive branch and Congress — who view the theft of government secrets as espionage, regardless of the motive, and those in civil-liberties groups and the media who see motive as a critical distinction.
Since Snowden first revealed that he had taken the NSA documents, he has said he is willing to admit what he did was illegal and accept punishment. In the summer of 2014, I spent three days with him in Moscow for a cover story in Wired magazine and a PBS documentary.
“I told the government I’d volunteer for prison, as long as it served the right purpose,” Snowden told me as we sat eating pizza in a Moscow hotel room. “I care more about the country than what happens to me. But we can’t allow the law to become a political weapon or agree to scare people away from standing up for their rights, no matter how good the deal. I’m not going to be part of that.”
But the key question is: What is fair if the Espionage Act does not recognise acting in the public interest as a defence
How fair is it if Snowden were not allowed to present as a mitigating circumstance the fact that because of his actions, Congress changed the law, to stop the government from secretly collecting billions of telephone records on every American all the time
Meanwhile, many in the intelligence community likely fear the kinds of documents that could emerge during the discovery phases of a trial or during witness testimony.
Snowden’s last best hope to return to the US is probably a pardon from President Barack Obama, because both party nominees in the presidential election have expressed little sympathy for his situation.
Stone’s sympathetic portrayal of Snowden in his film may shift public opinion to a more positive view. The movie shows how Snowden evolves from a supporter of President George W. Bush and the war in Iraq into an NSA whistleblower as he gradually uncovers the agency’s massive illegal spying on Americans. So the picture might translate into more support for a pardon. Only time — and strong box-office results — will tell.
