MEMORANDUM FOR PRESIDENT BARACK OBAMA
ATTORNEY GENERAL LORETTA LYNCH

November 28, 2016
As former professional staff members of the U.S. Senate Select
Committee to Study Governmental Operations with Respect to Intelligence Activities
(the “Church Committee”), we are writing to urge that the White House and the Justice
Department negotiate a settlement of the charges against Edward Snowden that both sides
can accept.
There is no question that Edward Snowden’s disclosures led to public
awareness which stimulated reform. Whether or not these clear benefits to the country
merit a pardon, they surely do counsel for leniency.
In the American political system, bipartisan government reforms are
generally regarded as the most legitimate and durable. Recently, however, our
government has all but stopped making bipartisan reforms. There is one big exception:
the surveillance reforms inspired by Edward Snowden’s revelations.
It was Snowden who supplied journalists with evidence that our
government had, for many years, been collecting information about the domestic phone
calls of millions of Americans. As a result, a bipartisan coalition in Congress formed to
amend the Patriot Act to prohibit the practice. In the Senate, Mike Lee, a conservative
Republican from Utah, joined with Patrick Leahy, a liberal Democrat from Vermont, to

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sponsor the reform. In the House, the move toward reform started with two Michigan
Congressmen, Justin Amash, a junior Tea Party Republican from Grand Rapids, and John
Conyers, a veteran liberal Democrat from Detroit. Republican Congressman James
Sensenbrenner, a primary author of the Patriot Act and its extensions, also backed the
reforms saying he and his colleagues had not intended to permit the NSA’s widespread
scooping up of data about Americans’ communications.
It was also Snowden’s material that showed the extent to which the
National Security Agency intercepts and filters international electronic communications
from undersea fiber optic cables, and taps internal links connecting data centers for
Internet companies like Yahoo! and Google. All this was in pursuit of former NSA
Director Keith Alexander’s directive to “collect it all.” Untold millions of Americans’
communications are swept up in these programs, where they are available for perusal by
the FBI and CIA through what has become known as the “backdoor” search loophole.
Republican Reps. Ted Poe and Tom Massie have joined with Democratic Rep. Zoe
Lofgren in sponsoring legislation to ban this practice.
Snowden’s documents also revealed the broad scope of NSA spying on
foreigners including eavesdropping on close allies in addition to potential adversaries like
Russia and China. While some have argued that leaking such “legal” surveillance
activities disqualifies Snowden from any mercy, President Barack Obama has
acknowledged that stronger controls were necessary. He implemented the first-ever
reforms to afford privacy protection for foreigners from surveillance unless it is necessary
to protect our national security.
The NSA, CIA, and Defense Department maintain that harm resulted from
the disclosures, particularly with respect to our efforts overseas, where they say

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relationships with intelligence partners have been damaged and our adversaries may
know more about our capabilities. No one is asking that these claims be ignored, only
that they be checked, and then weighed against the benefits.
America clearly did benefit from Snowden’s disclosures. Former
Attorney-General Eric Holder said that Snowden “performed a public service by raising
the debate that we engaged in and by the changes that we made.” President Obama has
said that the public debate regarding surveillance and accountability that Snowden
generated “will make us stronger.” The President also issued an executive order
recognizing that foreigners have privacy interests––an acknowledgement no previous
President had ever made––and also asked the intelligence community to find ways to
provide foreigners with some protections previously provided only to Americans.
Without Snowden, it would have been decades, if ever, until Americans
learned what intelligence agencies acting in our name had been up to. We know first
hand that lack of disclosure can cause just as many, if not more, harms to the nation than
disclosure. When intelligence agencies operate in the dark, they often have gone too far
in trampling on the legitimate rights of law-abiding Americans and damaging our
reputation internationally. We saw this repeated time and time again when serving as
staff members for the U.S. Senate Select Committee, known as the Church Committee,
that in 1975-76 conducted the most extensive bipartisan investigation of a government’s
secret activities ever, in this country or elsewhere.
Among the mass of long-lasting abuses that we uncovered were: For 30
years, NSA had obtained copies of every telegram leaving the United States. For 25
years, the FBI had planted an informer in the NAACP despite knowing from the outset
that it did nothing illegal. For decades, the FBI had run a secret program called

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COINTELPRO designed to harass and destroy groups and individuals whose lawful
policy positions the Bureau did not like. Actions included secretly breaking up marriages
of dissidents, getting teachers fired based on false information, provoking beatings and
shootings, and trying to get civil rights leader Martin Luther King, Jr., to commit suicide
by using information from bugs in his hotel rooms. For years, the CIA attempted to
assassinate foreign leaders of countries with whom we were not at war, experimented
with the use of drugs like LSD on “unwitting” Americans, and conducted domestic
surveillance of anti-Vietnam War protesters and civil rights activists—which was in
direct contravention of the CIA’s charter.
The number of Americans caught up in these decades-long webs of
excessive––and secret––intelligence activity was huge. Moreover, the Church
Committee’s disclosures revealed that six presidents, coming from both parties—from
Franklin Roosevelt to Richard Nixon—had abused their secret powers. All this set the
stage for bipartisan reforms that made our intelligence agencies stronger by bringing
them into compliance with the law and American values, and by establishing independent
oversight mechanisms. As Republican leader Senator Howard Baker said at the end of
the Church Committee, our disclosures “in the long run result[ed] in a stronger and more
efficient intelligence community.”
Snowden’s disclosures—which significantly lessened the time that
overbroad and inappropriate secret surveillance lasted in the 21st century—have had and
will continue to have the same beneficial impact.
Some oppose leniency for Snowden because he violated the law. But
many in the national security establishment who committed serious crimes have received
little or no punishment. President Obama’s decision to “look forward, not backward”

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absolved from liability the officials who designed and implemented the torture and
extraordinary rendition programs at the CIA and Defense Department during the George
W. Bush Administration. It also meant that those who destroyed evidence of these
crimes and misled Congress about illegal torture and surveillance would never face
charges.
In addition, the government has also been lenient to high-level officials
who made illegal disclosures or destroyed classified information. Examples are cases
involving National Security Advisor Sandy Berger and CIA Directors David Petraeus and
John Deutch.
CIA Director David Petraeus, who also had been a top general, violated
the law and his obligation to protect national security information when he provided his
biographer, who was also his close friend, with voluminous notebooks documenting Top
Secret military and intelligence operations, as well as sharing classified information with
reporters. He also made false statements to the FBI to avoid accountability for his
actions. Yet he was allowed to plead guilty to just one misdemeanor for which he
received no jail time. Former National Security Advisor Sandy Berger broke the law
when he removed several highly classified documents sought by the 9/11 Commission
from the National Archives and then destroyed them. He too was allowed to plead guilty
to a misdemeanor and received a fine and probation. President Bill Clinton pardoned
former CIA Director John Deutch before the Justice Department filed a misdemeanor
charge against him for improperly taking hundreds of files containing highly classified
information and storing them on an unprotected home computer. In all these cases,
recognition of the public service the individuals had provided weighed against strict
enforcement of the law, to come to a fair and just result.

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There are, of course, differences between these cases and Snowden’s. But
the crucial point is that only in Snowden’s case was the motivation behind his illegal
activity to benefit America. The three others involved efforts to gain glory or avoid
criticism, or simple convenience and simple disregard for the law that put our security at
risk. Yet the perpetrators were treated leniently.
Snowden’s explicit intent was to raise public awareness about activities
that he believed (and that all three branches of government have to varying degrees
affirmed) were illegal, or overbroad, so that there could be a robust public discussion
about the proper scope of government surveillance.
Snowden did not try to mask his identity, or lie to the FBI. He knew he
would pay a personal price. As he has.
Contrary to his critics, Snowden did not flee to Russia. Rather he was
trapped there when our government revoked his passport during the first leg of his flight
to Ecuador, where he had requested asylum. Exile in Russia was not his choice, and has
come at a high price personally, to him and his family. The United States thwarted his
efforts to obtain safe passage to other countries that had offered asylum, going so far as to
force Bolivian President Evo Morales’ plane to the ground in Austria to ensure Snowden
wasn’t on it.
The House Intelligence Committee has also claimed that Snowden should
have brought his concerns to superiors in the NSA and to Congress. But Snowden knew
that former NSA official Thomas Drake tried to report his qualms about NSA programs,
and was charged with violations of the Espionage Act nonetheless. More importantly,
the Intelligence Committees in Congress had known for years about the programs
Snowden exposed. But the Committees had not acted. Nothing happened in Congress

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until public pressure, fueled by Snowden’s disclosures, caused lawmakers on both sides
of the aisle to act.
Snowden also learned from Chelsea Manning’s wholesale document dump
to WikiLeaks, some of which put individuals and organizations named in the documents
at risk. Rather than simply publishing the NSA documents on the Internet, Snowden
provided them to media organizations, believing that the journalistic process would
ensure that only materials in the public interest would be published, and that the
government would have a chance to argue for redactions or withholding of materials that
might truly cause harm. While this method is not perfect, it was the best of the possible
choices available to get the word out with the least chance of harm. Such prudence is
also relevant to leniency for Snowden.
Some argue that Snowden should surrender to U.S. authorities, face trial
under the Espionage Act and make his argument that he acted in the public interest in a
courtroom. But, under the Espionage Act, a defense of acting in the public interest is not
allowed. Snowden also could not tell a jury that his actions spurred reform. The
Espionage Act, a harsh law, was designed to prosecute spying on behalf of foreign
nations rather than whistle blowing to inform the American public about government
overreach.
Under current law, the only way to weigh the public benefits of
Snowden’s leaks and account for his aim to help America is for the government to
mitigate the charges through settlement discussions.
The status quo is untenable. Snowden presumably does not want to stay in
Russia, and our government does not want him there. As the U.S. relationship with
Russian deteriorates, the risk to all interests involved increases. There is no question that

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Snowden broke the law. But previous cases in which others violated the same law
suggest leniency. And, most importantly, Snowden actions were not for personal benefit,
but were intended to spur reform. And they did so.
We therefore urge that the White House and the Justice Department
negotiate a settlement with Edward Snowden of the charges against him that both sides
can accept.

Frederick A. O. (“Fritz”) Schwarz, Jr.
Church Committee Chief Counsel

William Green Miller
Church Committee Staff Director

David Aaron
Joseph Dennin
James Dick
Peter Fenn
Karl F. “Rick” Inderfurth
Elliot Maxwell
Paul Michel
Christopher Pyle
Gordon Rhea
Eric Richard
Patrick Shea
Athan Theoharis
Burton Wides