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Manning's Release Shows Path Not Taken by Snowden

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What makes Chelsea Manning -- whose sentence for leaking classified military and diplomatic files was commuted Tuesday by President Barack Obama -- different from Edward Snowden, who will not be pardoned for his disclosures of classified National Security Agency information? Whatever the White House may have said, it isn’t just the degree of secrecy of the leaked documents, Manning’s guilty plea or her gender transition.

The most important difference is simply this: Snowden’s freedom poses a foundational threat to the U.S. systems of national security and criminal justice. Snowden won’t be pardoned because he’s demonstrated serious gaps in both realms. If he were in prison today, however, by his choice or otherwise, there’s a good chance he would have had his sentence commuted.

QuickTake Privacy vs. Security

The commutation of Manning’s sentence was overdetermined, in the truest sense of that word: The single effect is due to multiple causes, any one of which might have done the job on its own. The sentence was astonishingly long for a leaker. It came after Bradley Manning, as the Army private was then called, essentially threw himself on the mercy of the military justice system by pleading guilty to lesser charges -- and was then convicted of greater ones, including aiding the enemy.

And Manning’s gender transition makes her incarceration politically complicated and practically challenging for the Department of Defense, which must treat her not only as an individual but also as a symbol of the transgender-rights movement.

What all this means is that the real question isn’t why Manning’s 35-year sentence was commuted. It’s why Snowden isn’t getting similar consideration.

And here the answer must come not from the social meaning of Snowden’s act, but from the political significance of how he pulled it off -- and where he’s ended up.

Unlike Manning, who made no attempt to flee after her crime, Snowden planned his escape in advance of the disclosure of his material, taking a leave of absence and flying to Hong Kong. His escape showed that a government contractor with access to classified information could reasonably expect to get away -- something that was not at all obvious before.

Snowden’s subsequent adventures showed the limits of the U.S. criminal justice system in pursuing suspects abroad. The U.S. submitted what it considered a valid extradition request to the Hong Kong government, based on a U.S. arrest warrant. But Hong Kong officials let Snowden board a plane to Moscow anyway, claiming the extradition request wasn’t fully valid under their laws.

Because Hong Kong is controlled by China, the decision to allow Snowden to leave looked to the world like a decision by the Chinese government the highest levels -- and presumably was exactly that. China, a major U.S. adversary in the realm of national security, was signaling that while it did not want to internalize the costs of keeping Snowden on its territory, it was more than happy to thumb its nose at the U.S. while passing the problem on to Russia. This may not have been a fundamental injury to U.S. national security, but it was certainly an insult. It painfully demonstrated the limits of U.S. influence beyond its sovereign territory.

President Vladimir Putin’s decision to let Snowden stay in Russia went further still. The U.S. government had by then definitively revoked Snowden’s passport, making further travel extremely difficult. Putin would no doubt have traded Snowden to the Americans if it had served his interests. But Putin judged, correctly in my view, that allowing Snowden to live and move openly in Russia gave that country a global public relations win.

Around the world, Snowden is seen less as a criminal and more as someone driven by the “pure” motive of freedom of information. For a leader like Putin, who has cracked down on free speech domestically during his term, it’s a bonanza to be seen as protecting a free-speech hero.

Snowden’s symbolic status is correspondingly costly to the U.S., which would like to present itself as a champion of free speech and yet is seen to seek the arrest and imprisonment of one of the world’s most famous dissidents.

If Snowden were in prison in the U.S., Obama could commute his sentence or even pardon him and be seen as magnanimous. But so long as Snowden is at large, flouting American law and American capacity to catch him, a pardon wouldn’t look like a blow for freedom of information. It would look like weakness.

So don’t pay attention to the argument that Manning’s disclosures were somehow less harmful to the U.S. or that the documents she disclosed were only classified to the “secret” level. The diplomatic cables that Manning leaked destroyed not only many diplomatic relationships but also, arguably, the practice of confidential State Department cable-writing itself. The military leaks endangered the lives of U.S. troops in the field.

In contrast, Snowden’s leaks related to surveillance programs whose existence was broadly assumed by national security experts and very probably by terrorists as well. After all, the U.S. government’s aspiration to “total information awareness” was public already in 2002.

What’s more, Snowden’s leaks arguably achieved some valuable public purpose by revealing surveillance that was legally questionable or outright illegal. It’s far from clear that any of Manning’s leaks had any positive effect on the U.S. or improved the lives of American citizens.

Nor is the admission of guilt important as a distinction: Snowden hasn’t denied what he’s done.

What makes Snowden unpardonable is that, for now, he’s getting away with it. If his long-term goal was to live an ordinary life in the U.S., he probably should have turned himself in and emphasized his patriotic goals. It would’ve been a risk -- but the commutation of Manning’s sentence strongly suggests that the risk would have paid off for Snowden. Instead he’s stuck with exile -- unless Donald Trump sees things differently from his predecessor.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net