Why do we want to put Edward Snowden in prison?

That’s the question that I have been asking myself lately. Okay, perhaps shortly after his arrest, I thought that he deserved to be locked up, maybe for life. He was, after all, a contractor working for the National Security Agency. He took an oath that he would not disclose any classified information. He knew what the penalties were for disclosing the information, and the penalties for treason could not be more severe. Moreover, shortly after giving his interview to the German magazine Der Spiegel, he hightailed it from his staging area on Hawaii to Hong Kong to evade justice, even though he never hid his identity from the paper or the press. That’s pretty cowardly. Case closed, right? Try him, send him to prison and probably throw away the key.

I will grant you that he did disclose a lot of sensitive information, and quite likely a lot of information that puts our national security in some danger. If nothing else, foreign governments now know what the NSA can do. It sure surprised the hell out of me, so it must have been a wakeup call to governments everywhere. The KGB in its glory days could not begin to envision this level of intimate knowledge about citizens and visitors that the NSA now routinely collects and files.

With every new revelation, the more grateful I am to Edward Snowden for his deed. Thanks to Snowden we now know the true size and capabilities of our surveillance state, and it is more than Big Brotherish than even those of us who are technology savvy could imagine. It is truly frightening. The NSA can record pretty much all email communications within the United States and much of it outside the United States as well. It can and is capturing much of our browsing behavior (metadata). It also has the capability of capturing phone records, text messages, tweets (well, at least those are public) and instant messages. It can record our phone calls. It can trace our behavior over a long period of time. It can see three or more levels of relationships deep, and see which friends of our friends might be chatting with someone they think is suspicious, which makes us suspicious to them.

And just when you think it can’t get worse, most recently we have learned that the NSA has figured out how to read most of our encrypted communications. A lot of it is done with backdoors to encryption algorithms that apparently allows them to easily decrypt a message, which means they were involved in setting encryption standards and twisted the arms of vendors publishing these algorithms to give them surreptitious backdoors. Moreover, they must have invested in huge numbers of supercomputers to quickly decrypt those remaining algorithms they could not easily crack.

There is no way that this could possibly pass constitutional muster, but it was aided and abetted by a secret court which agreed (in secret) that it could not possibly police the NSA’s conduct. It depended on the NSA to tell it when they had slipped up, and that’s the only way we’d even know about some of this unconstitutional behavior, and only then because someone blabbed. The inference is hard to miss. There is probably a lot more we don’t know about the NSA that Snowden didn’t know about. The NSA has implemented eighty percent of a perfect intelligence state, it just hasn’t told the public or most of Congress. We would likely never have known any of this had Snowdon not decided to reveal the truth.

Snowdon is technically a criminal, but he is also a hero and a patriot. He has exposed the truth to the public, which is justifiably outraged by the NSA’s actions. If there is one thing I have learned as a federal employee, it’s that whistleblowers rarely get off scot-free. The whistleblower law is routinely ignored. If you are a federal employee and blow the whistle on illegal behavior, you certainly won’t be rewarded. Almost certainly you will be cut off at the knees. The Washington Post ran a recent story of some of these whistleblowers, some of who have had their pensions stripped from them, pensions earned over decades of federal service for which they contributed much of their own money.

Snowden was not a federal employee, but a contractor, but he was definitely a whistleblower. I don’t blame him for going on the lam, because even if he wasn’t dealing with classified information disclosing something similar to this would mean the bureaucracy would go after him in ways legal and illegal. Because he did have access to classified information, it becomes a criminal matter. It’s clear that the national security establishment from the president on down wants to try him and give him the severest form of punishment. Since his behavior is considered treasonous, he could be executed.

Snowden knew all this but chose to disclose the NSA’s illegal behavior anyhow. For those of us who value our lives, it was an irrational thing to do. Still, that he chose to do it strikes me as the actions of a man of deep principle. He strikes me as someone who takes our constitution at its face value and realized these actions by the NSA were unconstitutional. This was not the act of an evil man; it was the act of a man with a profoundly moral conscience. Snowden realized that the greater evil was suppressing this unconstitutional behavior. He hasn’t made a dime from his revelations.

So now we know. I for one am glad to know and thus grateful to the man. It was not our national security that was damaged. It was our constitutional democracy that was damaged, and this secret surveillance court is a sham. Moreover, our national security means nothing if our constitutional democracy is a sham. Our government is not being governed in accordance with the clear intent of our constitution. In particular, the NSA is riding all over the Fourth Amendment, which prohibits unreasonable searches and seizures. There is simply no tortured reasoning of the NSA’s behavior that can possibly make this behavior constitutional. And through a secret surveillance court packed with pro national security judges, no way to address this behavior because simply doing so publicly endangers national security. It was a classic Catch-22. The only way out of it was to be technically unlawful but adhere to the meaning of the law, which is what Snowden did.

Now at least we have the opportunity to tell Congress and the president to fix this. We now can demand accountability and transparency, something even President Obama seems willing to do to some degree. None of it would have happened without Snowden’s daring and many would argue reckless act.

Edward Snowden is a hero. He should not be tried. The president should issue a blanket pardon for his actions. He should be provided with Secret Service protection when he comes back to the United States so he can live the life of a free man because there will be a target on his back for quite a while. We should hold parades to honor him and he should even get the Medal of Freedom. President Obama should admit he was wrong to authorize this behavior. He should invite Snowden to become part of a group of citizens that monitors the NSA’s behavior. This would be true justice. Then those of us who take our constitution seriously might actually begin to trust our government again.

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