Why Prosecuting Snowden Is Unfair -- Until NSA Answers for Misconduct

What America learned from Edward Snowden's interview with "NBC News" anchor Brian Williams on Wednesday evening was much less than what we still need to know. Snowden described himself as a highly trained espionage agent, rather than a low-level hacker; he insisted his actions were patriotic, not treacherous; and said he yearns to return to the United States. He claimed to have warned his superiors about the surveillance excesses committed by the National Security Agency, and he doesn't believe a fair trial would be possible for him under the Espionage Act if he did return.

But we still don't know exactly what Snowden took when he stole millions of files from U.S. intelligence computer systems. We don't know why he chose to take what he did. The officials charged with investigating his actions have charged that only a tiny fraction of the documents that he "exfiltrated" from top-secret computers had any connection to whistleblowing about questionable domestic surveillance activities by the government.

Instead, he reportedly focused on documents that would expose secret U.S. operations against the Chinese and other NSA targets that were conducting their own cyber assaults on our systems. He revealed NSA operations and capabilities that have probably forewarned terrorists and other U.S. adversaries to change their communication methods. And, of course, his revelations about spying on foreign governments and leaders gravely embarrassed the United States in ways that may incur lasting economic and diplomatic consequences.

The full dimensions of his actions will remain murky until the government someday unseals the evidence compiled against him. Knowing what is in those files, however, the Obama administration and the U.S. intelligence community, which includes members of the House and Senate intelligence committees, believe that Snowden must be prosecuted.

A powerful argument can be made that his revelations about domestic surveillance served a public purpose and should mitigate any punishment. Indeed, an American jury might simply nullify the charges against him for that reason. Still, if the government must carry out significant intelligence and diplomatic activities that require discretion, how can its legitimate secrets be protected if any contractor or agent may purloin them with impunity?

Yet impunity is also a burning issue at far loftier levels of the intelligence hierarchy, as Snowden noted in another recent appearance. Speaking via video link from Moscow at the Ridenhour awards in Washington, D.C., last month -- where he and filmmaker Laura Poitras received the "truth-teller" award for whistleblowing -- he outlined a double standard that would raise hard questions about any indictment issued against him.

Specifically, he pointed an accusing finger at NSA chief James Clapper, who testified before the Senate in March 2013 -- just before Snowden uploaded documents proving that the spy agency was monitoring and collecting massive amounts of data on American citizens -- that it was doing no such thing.

"Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" asked Sen. Ron Wyden, D-Oregon. "No, sir," Clapper replied, adding, "not wittingly."

At the Ridenhour event, Snowden drily recalled that moment. "There's been a lot said about oaths. The oath that I remember is James Clapper raising his hand and swearing to tell the truth and then lying to the American public."

Going on to describe reported abuses by other NSA employees who used the agency's technology to spy on their wives and girlfriends, Snowden wondered why only he faces legal jeopardy:

"When they committed these crimes -- when James Clapper committed a crime by lying under oath to the American people -- were they actually held accountable? Was anyone tried? Were charges brought? It's been years since these events occurred. Whereas within 24 hours of the time I went public, three counts of charges were filed against me personally. We have to ask ourselves if we can hold the lowest, most junior members of our community to this high standard of behavior, why can't we ask the same of our most senior officials? James Clapper is the most senior intelligence official in the United States of America, and I think he has a duty to tell the truth to the public."

Whatever Snowden did, his complaint against Clapper remains undeniable. And the government will have little moral authority to prosecute the young fugitive unless and until the NSA chief is required to answer for that serious offense, and constitutional order is restored.

To find out more about Joe Conason, visit the Creators Syndicate website at www.creators.com.

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