By Marino de Medici
There are good reason to believe that if the amnesty proposal for Edward Snowden were submitted to a national referendum, a large number of Americans -- albeit not the majority -- would vote in favor of amnesty. On the other hand, as President Obama was quick to point out, Snowden has been indicted and it appears extremely unlikely that the attorney general will authorize the granting of amnesty in the absence of judicial proceedings.
Among those who would lower the boom on Snowden are people like former CIA Director James Wolsey, who said that the NSA analyst should be prosecuted for treason and if convicted, "hanged by his neck until he is dead." All of this coming from one of those neo-conservatives who sent American boys to die in the invasion and occupation of Iraq on the basis of flimsy intelligence.
Traitor or hero? -- is indeed the question. I have no doubt that deep down many Americans are grateful to Snowden for having made it possible to stop the violations of privacy that had been going on for too long and for blowing the cover about the indiscriminate snooping of phone conversations, emails and other personal communications of Americans.
He may even be a hero to those who agree with the decision of U.S. District Judge Richard Leon, a George W. Bush appointee, who stated in a preliminary hearing: "I cannot imagine a more indiscriminate and arbitrary invasion than the systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without prior judicial approval."
It was truly a judicial bombshell that the Obama administration did not expect. Right after that came the recommendations of the White House review panel that called for banning the National Security Agency from attempting to undermine the security of the Internet. In addition, it said that the NSA should be stripped of its power to collect telephone records in bulk.
It was truly a crescendo of pressures not only by the courts but by business interests that are concerned that the backlash of U.S. spying may splinter the Internet as a result of foreign countries adopting different standards to thwart surveillance. These fears have a monetary justification as U.S. companies stand to lose revenue on the order of $35 billion as a consequence of loss of security in their systems. To them, Snowden is more than a whistleblower, he is the man who single handedly made it possible to limit intelligence collection and tell the public, and most importantly their customers, what data the government is seeking from them. They do not call him a hero, but something pretty close to it. American companies indeed owe it to Snowden if the unconstitutional "bulk collection" came to light after severely damaging public trust in communications privacy and at the same time the American economy.
Another thing that surely Americans have noticed is that the "almost Orwellian technology" that Judge Leon condemned has not achieved great results. The judge pointed out that the government had not cited "a single instance" in which the collected data had stopped an imminent attack.
The constitutionalists, who are a legion in both Democratic and Republican fields, have taken note of the single most important aspect of Judge Leon's ruling, the refutation of the government's argument that the collection program is constitutional under a 1979 Supreme Court decision, according to which individuals have no reasonable expectation of privacy in information they turn over to third parties such as telephone companies. That decision, relevant to a single police investigation, cannot support what the judge called "the daily, all encompassing indiscriminate dump of phone metadata that the NSA now receives."
All of this points to a large scale reconsideration of the validity of the Fourth Amendment -- dealing with "the right of the people to be secure...against unreasonable searches and seizures" -- in the digital age, with the explosion of cellphones, not to mention an epochal change in the way that people generate personal information. On the larger political landscape, the Snowden saga has sparked a debate on the government's eavesdropping that will eventually lead to significant limitations of the NSA activities. Congress as well will have to step up to the plate with needed reforms.
I suspect that one day in the not too distant future Snowden will return to America to face the music, not with the assurance of amnesty but as the result of a deal that will assure him of a trial with reduced charges. In this case, the verdict would be up to a jury, which may not look at him as a hero but as someone who acted not as a traitor but as an American who revolted at a situation that he judged unconstitutional.
The president, whoever he may be, will not lift a finger, for obvious political reasons, and will let justice take its course. There is no doubt that it would be a momentous trial. One almost wishes that Snowden would be up to it, with the Constitution as his best witness.
Marino de Medici is a Winchester resident and formerly the dean of foreign correspondents in the United States.