In the closing days of 2013, the NSA's surveillance program took two huge perceived hits, first in a preliminary ruling from U.S. District Court Judge Richard Leon and later from President Obama's Review Group on Intelligence and Communications Technologies.
The editorial boards of The New York Times and the Guardian rang in the new year with full-throated defenses of Snowden and advocated in support of clemency or a pardon.
Although these are still early days and things could change over the next few months, conventional wisdom seems to suggest that the president will ultimately authorize some manner of a restructuring and pullback of the existing NSA programs.
The broad and expansive authority originally conferred upon NSA in the traumatic days following the terrorist attacks on Sept. 11, 2001, appears to have finally run its course.
For Snowden’s defenders, including Glenn Greenwald, who continues to publish stories in a variety of media outlets relying upon the leaked documentation that Snowden provided to him, these recent events have strengthened their calls for Snowden to be pardoned.
Greenwald himself has repeatedly suggested that it would be illogical to convict someone for exposing a government program that a federal judge, members of Congress and the president's own review board ultimately concluded had gone too far.
The editorial board of The New York Times chose to characterize those of us who have raised critiques of Snowden's methods and, more importantly, the broad scope of his leaks as the “shrill brigade.” I respectfully reject that characterization as oversimplifying the matter.
To be sure, Snowden's disclosures will likely result in changes and reforms in terms of how the NSA conducts surveillance that implicates the privacy of U.S. citizens.
If Snowden’s leaks had been limited to exposing the phone metadata domestic surveillance programs, as well as Internet surveillance programs like PRISM, there could be some merit to the calls for him to be offered some form of a deal.
The merits of such a deal would obviously be strengthened by a Supreme Court ruling upholding Judge Leon's analysis, but such a legal victory remains to be seen.
But Snowden did not limit himself to those issues. Nor did he first attempt to utilize any of the existing — albeit flawed — options available to him short of leaking, including approaching the NSA Inspector General or going straight to certain members of Congress (Sens. Rand Paul, R-Ky., and Ron Wyden, D-Ore., come to mind).
Respectfully, allegedly making informal comments to two supervisors does not qualify as an exercise in due diligence.
Instead, Snowden used his position and particular skill set to steal and leak to Greenwald (and others) allegedly nearly 2 million classified documents from the NSA’s database.
That documentation has exposed several aspects of foreign surveillance operations and cyber operations that in no way implicate the privacy rights of U.S. citizens or violate existing U.S. laws.
What it does expose are legitimate and lawful overseas operations that are the exact type of activities that NSA is tasked with handling.
Although some may view these operations as creating a “surveillance state” that infringes upon the privacy rights of foreign citizens or reflects poor policy judgment, the ultimate prerogative of NSA in particular and the U.S. government in general is the protection of the rights and liberties of U.S. citizens.
It would be dangerous and incredibly naive to limit our country’s national security apparatus by vague, undefined notions of “global privacy.”
In the end, Snowden is due some credit for exposing programs that potentially violated the constitutional protections of his fellow Americans, or at least created a healthy dialogue on the issue.
But that does not change the criminality of his actions or the violation of the oath he gave to the U.S. government.
Nor does that change the considerable amount of information he leaked that did not qualify him as a whistleblower.
Working in the classified arena is not for the faint of heart. It imposes an additional level of responsibility and obligations as it reflects a sacred trust and privilege. Snowden, whatever the merits of his motives, violated that trust.
When it comes to the issue of a pardon or clemency for Snowden, the answer should remain a resounding “no.”
Bradley P. Moss is a Washington, D.C., national security attorney.