Surveillance: Snowden NSA Controversy

Clemency for Snowden? What the Debate Can’t Tell Us

By Quinta Jurecic
Tuesday, September 20, 2016, 11:00 AM

Prior to last week, one might have been forgiven for thinking that Edward Snowden had fallen out of the news. Now, however, Oliver Stone’s new film Snowden and the ACLU-Amnesty International campaign to obtain a presidential pardon for the eponymous whistleblower have jointly revived the long-dormant debate over Edward Snowden’s fate. Together with a freshly-issued House Intelligence Committee report on Snowden, Barton Gellman’s rebuttal, and further reporting on Snowden’s time as an NSA contractor, the controversy has very much returned to the forefront of public life.

Given the ACLU-Amnesty campaign, the debate this time around has coalesced around the question of whether not Snowden deserves a presidential pardon. Much ink has been spilled over this argument, on Lawfare and elsewhere, and I won’t re-litigate the matter here. But I do want to further examine an aspect of this debate that Susan Hennessey and Benjamin Wittes have already touched on: the nature of the pardon power itself.

Alexander Hamilton is very trendy these days, so let’s turn begin with Federalist 74, the original document describing the American clemency power. Hamilton writes:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

There’s a lot to chew over in Hamilton’s essay—not least including the fascinating phrasing of “unfortunate guilt” above, or his argument elsewhere in the piece that the president must have the ability to pardon traitors in order to “restore the tranquility of the commonwealth,” which suggests the possibility of clemency being granted on primarily utilitarian terms. In Snowden’s case, we might use this to argue that a pardon issued on the basis of political calculation alone, or on the grounds that the benefits of Snowden’s leaks outweighed the costs, would not be out of place.

But the crux of Hamilton’s view of clemency is that it is ultimately the purview of the president alone. The granting of a presidential pardon is non-reviewable by any other branch of government. There are no parameters or guidelines to inform what is or is not an appropriate use of that power; the president may issue a pardon for any reason. It’s the power that most quintessentially reflects a Hamiltonian view of executive power, with the president presiding as a quasi-monarchical sovereign above the more regulated machinery of the justice system.

Usually, we tend to balk at such a description of sovereign or executive power. The regulation and systematization of justice is what makes this country a liberal democracy, after all. But Federalist 74 tells us that there is something about the granting of mercy that must be a fundamentally individual decision free from regulation.

In the passage quoted above, Hamilton beautifully expresses the idea that absent of the possibility of appeal to one person, “justice would wear a countenance too sanguinary and cruel.” Liberal democracy necessarily functions according to systems of law, but law in its most codified and systematic form, undiluted by human emotion, risks becoming cruelty. (One thinks of Talus in Spenser’s Faerie Queene, the brutal mechanical embodiment of justice whose commitment to that same virtue ultimately prevents him from saving his own master.)

While Hamilton suggests that clemency mitigates the “sanguinary” aspect of justice, it’s for this same reason that clemency can’t be legally regulated but must be an individual, human act. The quality of mercy is not strained. Neither can it be systematized.

During a discussion of the pardoning campaign on this past week’s Rational Security, Susan argued that President Obama is particularly unlikely to pardon Snowden because of the president’s view of the clemency power as an individualized moral judgment and an act of forgiveness—as opposed to a political or utilitarian calculation. The underlying point here is that the president’s individual, personal judgment as to what pardoning is for holds a great deal of weight in this discussion, perhaps the whole weight. And according to Hamilton, that’s just as it should be.

The difficulty is that an argument over whether Edward Snowden should or should not be pardoned will tend to become an argument over the proper use of the pardoning power—or, to put it another way, whether a pardon for Snowden would constitute an appropriate instance of clemency. But by its very nature, the rights and wrongs of presidential clemency can’t be described or defined to an extent sufficient to resolve this debate. It is necessarily inchoate. And as a result, we’re left arguing over a lacuna.

Or, in the alternative, we end up arguing how President Obama should feel, what should be important considerations to him, and how he should weigh certain values and goods relative to others. This may well be an interesting debate. But it is, as Susan and Ben note, unlikely to persuade the only person whose opinion matters—the president himself. And it remains free from any deciding legal or factual mooring, ultimately dependent as it is on Obama’s internal moral life alone.

This is not to say that the argument has not raised valuable and interesting points, or that the ACLU and Amnesty International were misguided in launching a bid to obtain a pardon for Snowden.

Rather, my point is that the nature of this particular argument is such that no one is going to be persuaded one way or the other. Because of the uniquely inconclusive character of the clemency power, we’re all free to project our notions of Snowden’s relative guilt or innocence onto our own understandings of what that power does or should mean. And without any agreement about the appropriate contours of presidential clemency, we lack a common language to discuss whether or not Snowden should be pardoned.

Magnifying this problem further is the conclusory House Intelligence Committee report and the equally conclusory response to it. As Susan wrote on Twitter:

At some point, the House Intelligence Committee might choose to declassify some of the evidence behind its scathing conclusions, and then we’ll be able to have a more substantive discussion on the nature of the report’s claims. But even if we’re armed with new evidence, there will still be a unique futility to framing the argument about Snowden as an argument about whether Snowden should be pardoned—especially given the unlikeliness that the event itself will ever come to pass. As it stands, the debate over clemency is just one more way for everyone to reiterate exactly the view of Snowden that he or she already held to be true.