Saturday, January 04, 2014

Fred Kaplan Reliably Wrong on Snowden Clemency

Since I pretty much made a meal out of this issue over on Twitter, I’m returning from 140-character land to the reassuringly logorrheic surroundings of my blog to share my thoughts on the Fred Kaplan think piece that made the case for denying clemency to Edward Snowden.

I was rather bemused by the hosannas this piece attracted from certain quarters.  It’s the usual collection of sneering tropes, innuendo, and speculation, marshaled in this case to repudiate a New York Times editorial urging clemency for Snowden.

Kaplan puts his gloss on what he regards as Snowden’s vile shenanigans to conclude that Snowden would not agree to get strapped to a polygraph for a pre-deal debriefing about what Kaplan regards as his disingenous statements about footsie with the Chinese and Russians and thereby asserts (in the title of his piece) that Snowden “won’t (and shouldn’t) get clemency.”

Predicating any Snowden clemency on Snowden inserting himself into the maw of the US security services for a preliminary adversarial debriefing is, quite frankly, such an obvious straw man that I’m surprised Kaplan’s piece was taken seriously.

But it was, by a lot of people, Ian Bremmer and Josh Marshall among others who, I speculate, are profoundly uncomfortable with what Snowden did and need the feeling that a pound of flesh has been extracted from Snowden’s currently safe, sound, and snowbound borscht-swilling hide in order to get closure.

Let me tell you what I think is in play here, and why Kaplan is willfully or obtusely missing the point.

I think the real point of the New York Times appeal for clemency is not to validate Snowden’s actions or opinions; it's damage control.  It is an attempt to right the ship of American security and foreign policy and commerce. 

The US government, in order to renormalize its dealings with its allies, needs to make a high-profile symbolic gesture that the intrusive unilateral surveillance practices of the NSA, abetted by US high tech companies, have been reined in.  Once this ugly transition has been navigated, the US can reclaim the moral high ground and return to strongarming foreign countries to cooperate with the NSA (and buy American high tech products which now look pretty tainted) under the new, Snowden-approved regime.

Per the NYT:

Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

In other words, it’s all better, the US has come to terms with the extra-legal and/or excessive nature of some NSA practices, we’re the good guys again, Look! We even gave clemency to Snowden!  And you better keep buying Cisco routers!  Or else!

My personal opinion is that the New York Times suggested clemency for Snowden, as opposed to a presidential pardon, in order to throw a bone to the anti-Snowden crowd by acknowledging he had broken the law and not ruling out the possibility that he had harmed certain US-related interests.  

I refer interested readers to the Scooter Libby sentence commutation controversy for additional discussion (and suggest that the NYT may have shaped its Snowden proposal around the Libby case, where arguably rather dirtbag behavior was excused by the president with limited fuss, muss, and sustained public indignation for reasons of White House morale and partisan inclination, rather than any overarching foreign policy goal).

Unfortunately, clemency raises a new set of issues because it is traditionally granted for cause after the recipient has paid his debt to society with a certain amount of time in the slammer.  Maybe the NYT should have proposed a straightforward pardon for Snowden on the grounds of national interest.  Asserting clemency on grounds of equity, on the other hand, opens up the whole can of factual and evidentiary worms for Kaplan and other Snowden detractors to dig in.

I find it amusing that Kaplan’s contemptuous rejection of the clemency gambit, because it was coupled with a recognition that conditions did not yet obtain for trying Snowden for treason, was hailed as some piece of high-minded objectivity.

Tough minded pundits like Fred Kaplan are supposed to look beyond their emotions, look beyond concepts of justice, to make the tough calls to protect American interests.

In this case, the US interest would seem to reside in using a Snowden clemency to hang some faux-reform bunting on Castle Greyskull, the NSA's fortress headquarters in Fort Meade.

By attempting to foreclose clemency, Kaplan is not lifting a middle finger to Snowden or the New York Times; he is flipping off the Obama administration, the US security empire, and the US high tech industries, all of whom are trying to cope with the genuine Snowden effect: the incremental disintermediation of the United States from the world communications, data, and surveillance empire that they had themselves created.

When I read Kaplan’s article, I was reminded of that scene in Airplane! (funny only in a rather creepy way, I must say), where passengers line up to slap a hysterical passenger.

In this case, I imagine Kaplan facing the ire of a long line of US government and private interests, with world influence, security assets, and billions of dollars of contracts at stake, all trying to slap some sense into the guy.  

$5 billion in contracts for Cisco routers!  Slap!  The Brazilian Internet repiped away from the United States! Slap!  The PRC making the moral case against US global surveillance!  Slap!  Angela Merkel can’t let us listen to her cell phone!  Slap!

Yeah, I know, a lot of people think we should be slapping Snowden instead.  Point is, Snowden’s already done what he’s going to do.  It's water under the bridge.  In B-school speak, it's a sunk cost.

The real question is, What is the US going to do about it?  What is Fred Kaplan going to do about it?  

I recall a passage from Kaplan’s clemency slam:

But one gasps at the megalomania and delusion in Snowden’s statements, and one can’t help but wonder if he is a dupe, a tool, or simply astonishingly naïve.

Hmmm.  Pot...kettle...pot...kettle

[After posting this, it occurred to me that perhaps the Kaplan strategy is simply to unfurl the banner of defiance and stick to the line that the problem wasn't Snowden's revelations but the fact that Snowden revealed them.  If so, the appearance of the New York Times editorial and the realization that the foreign policy and media elites were not standing shoulder-to-shoulder would have been a nasty knock.  CH, 1/4/14]

I don't think Edward Snowden is going to get clemency.  But I think it's interesting that the NYT, perhaps working with some people inside the Obama administration, decided to float this trial balloon. And I'm still struck by the emotions that this case continues to arouse.

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