President Obama Claims He Cannot Pardon Snowden;He's Wrong + full transcript of the interview

President Obama Claims He Cannot Pardon Snowden;He's Wrong

from the yes-you-can dept

In a big interview with the German media outlet Der Spiegel, President Obama was asked about his interest in pardoning Ed Snowden in response to the big campaign to get him pardoned. Obama's response was that he could not, since Snowden has not been convicted yet:

ARD/SPIEGEL: Are you going to pardon Edward Snowden?

Obama: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security. Those who pretend that there's no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don't recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.

And those who think that security is the only thing and don't care about privacy also have it wrong.

This is simply incorrect -- as is known to anyone who remembers the fact that Gerald Ford pardoned Richard Nixon before he had been indicted.

And it appears that the President knows this. Because, as the Pardon Snowden campaign points out, Obama pardoned three Iranian Americans who had not yet stood trial. That happened this year. So for him to say it's impossible to pardon someone who hasn't gone before the court is simply, factually, historically wrong.


And there's a Supreme Court ruling that makes this abundantly clear. 150 years ago, in the ruling on Ex Parte Garland, the Supreme Court stated:

The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.

A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment.

Separately, the argument that if Snowden goes to court he can "make his arguments" is also wrong. And President Obama also knows this. The Espionage Act, under which Snowden is charged, does not allow any sort of whistleblower or public interest defense at all.

As Snowden’s lawyer, the ACLU’s Ben Wizner has explained, this isn’t hypothetical. When Daniel Ellsberg stood trial under the Espionage Act, his attorney asked him why he decided to leak the Pentagon Papers to journalists. The prosecution objected to the mere question, and the judge sustained the objection. No matter the egregiousness of the government’s actions, a whistleblower’s motivation has no place in an Espionage Act trial.

That means that Snowden wouldn’t be able to explain why he felt the public should know what the NSA was doing, he wouldn’t be able to point to the federal courts that ruled against the NSA in the aftermath of the disclosures, and he wouldn’t be able to cite subsequent advances to cybersecurity. His conviction and severe punishment would be a foregone conclusion.

There may be reasons why the President doesn't wish to grant a pardon to Snowden, but his stated reasons are completely bogus.

Here it is the full interview

From President Obama to DER SPIEGEL

November 18, 2016  04:46 PM

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It's not easy landing an interview with Barack Obama, particularly since he seldom speaks to the foreign media. Leading German public broadcaster ARD and DER SPIEGEL decided to team up and request a joint interview with the American president on the occasion of his final visit to Berlin this week. The following is a longer version of the interview ARD broadcast in primetime on Thursday evening. The English-language video from that broadcast is embedded in this article.

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ARD/SPIEGEL: Mr. President, Donald Trump won the election, revealing massive discontent and rifts within American society. Did the amount of anger actually surprise you?

Obama: I think it's important not to overstate what happened. The truth is that America has been closely divided politically for quite some time. That was reflected in some of the challenges I had with the Republican Congress. What was unusual in this election is that my approval in the United States is as high as it has been since I was elected. And the economy is going relatively well. I think what is true is that there's been an underlying division in the United States. Some of it has to do with the fact that economic growth and recovery tends to be stronger in the cities and in urban areas. In some rural areas, particularly those that were reliant on manufacturing, there has been weaker growth, stagnation, people feeling as if their children won't do as well as they will.

There are cultural, social and demographic issues that came into play. They're not that different from some of the issues that Europe faces with immigration, the changing face of the American population. I think some reacted there, and Trump was able to tap into some of those anxieties.

American politics is always somewhat fluid. In this age of social media, it means that voters can swing back and forth. I mean, there were probably millions of voters who voted for me and supported me and this time also voted for Donald Trump, and it just indicates that some of this is less ideological and more just an impulse towards some sort of change.

And the question now, going forward, is whether the president-elect is able to move on those elements of his agenda that I think can garner broad support, like rebuilding our infrastructure. And if he can lessen some of the more controversial rhetoric that could divide the country more. That's going to be the test for him in the years to come.

ARD/SPIEGEL: When you took office, you sent a message of hope and reconciliation to the American people, and yet today the USA seems to be completely divided. I think we can call it a 50-50 nation, with one half not really understanding or knowing the other side. Have you missed your goals?

Obama: Well, it's interesting. We're not actually a 50-50 nation. We're probably more like a 60-40 nation. The problem is that we're 50-50 when it comes to voting. If you look at the new generation of Americans, they reflect the vision that I spoke about. They're diverse. They believe in tolerance. They're accepting of things like same-sex marriage. They believe in integration. The problem, though, is that young people are less likely to vote than older people. What results is a situation in which sometimes the elections don't fully reflect the views of the American population. Essentially, the president-elect was supported by about 27 percent of the American population. One of our challenges, historically, is that we have very low voting rates, even during presidential elections.

But what is true, and I think that we can't deny it, is that some of the same concerns about globalization, about technology, rapid social change that were reflected in Brexit, that's been reflected in some of the debates in Germany and France and other places, that those exist in the United States as well. My view is that over the long term, over the next 10, 15, 20 years, if we are able to address the legitimate economic concerns of those who feel left behind by globalization, then many of these tensions will be reduced. And we will see a world that is less divided. But if the global economy is unresponsive to people who feel left behind, if inequality continues to grow, then we could end up seeing more and more of these divisions arise throughout advanced economies around the world.

ARD/SPIEGEL: During your presidency, you were confronted with a very hostile Congress. Donald Trump now is going to enjoy Republican majorities (in both the House and the Senate). Do you fear that your reforms like Obamacare, the nuclear deal with Iran and the Paris climate change agreement will be overturned or, as Donald Trump has put it, "cancelled"? What remains of your legacy?

Obama: First and foremost, it's important to remember that, from my perspective at least, my most important legacy was making sure that the world didn't go into a Great Depression. Keep in mind that, when I came in, we had had a crisis that was the worst we've seen since the 1930s, and working with people like Chancellor Merkel, working with the G-20 and other institutions internationally, we were able to stabilize the financial system, stabilize the US economy and return to growth.

We've now had 73 consecutive months of job growth. It's the longest period of job growth in the United States in our history.

Unemployment is low, incomes are up, poverty is down -- and that's going to be a lasting change. When I turn over the keys to the president-elect, the country will be much stronger than it was when I came into office.

With respect to some of the specific legislation or initiatives that I've made, it's true that Republicans often opposed these things. Sometimes they opposed them because I proposed them. Now that they are responsible for governing, I think they'll find that reversing them would be counterproductive.

Let's take the example of the Iran deal. There was a vigorous debate around this issue. There were many who were very skeptical of the deal. They believed Iran would not fulfill its commitments. Of course, now we have a year of proof that, in fact, Iran has done everything that they said they were going to do. And without engaging in a war, through diplomacy, we've been able to dismantle much of Iran's nuclear weapons-making capabilities. And it has the broad support of the international community. It would be unwise -- and, I think, ultimately the president-elect will recognize this -- to do that.

With respect to healthcare, 20 million people now have health insurance who didn't have it before. He says that he can improve on that system, and my view is that if, in fact, he can provide the same amount of people with health care in a better way than I could, then I would support such efforts. Of course, I think when you actually try to do it, he may discover that the system we put in place is the best one that we can design. I always say that campaigning and governing are two different things. My hope and expectation is that regardless of what the president-elect said during the campaign, he's going to have to look carefully at the realities when he moves forward.

ARD/SPIEGEL: Let us dwell on the Paris climate agreement a bit more. It's an issue that doesn't really directly touch the daily lives of many American people. But it is urgent and definitely not a No. 1 priority for Mr. Trump. Do you fear it might be dead before it even takes off?

Obama: You are absolutely right that climate change is one of the issues I worry most about because its impacts are enormous. But they're gradual, they're not immediate. One of the hardest things in politics is to convince people to do things now that will have a good effect 20 or 30 years from now because politicians tend to have a short-term view. They are more attentive to things that people care about today.

The good news is that the Paris Agreement is not just a bilateral agreement between the United States and some other country. You have 200 countries who came together. It's an international agreement. Historically, when a previous US administration enters into an agreement, it carries forward into the future administration. I've always viewed the Paris Agreement as a starting point. If you look at all the commitments that have been made by all the countries, it's still not sufficient to deal with the very dangerous situation we face. What it has done is that it created an architecture whereby as technology improves, as we find new clean sources of energy, as we make our economies more efficient, then gradually we can turn up the dial and improve the outcomes of Paris.

I don't want to sound too optimistic. It is true that the president-elect and many of his supporters are less interested in this issue than I am, but I think that it can survive -- even if for the next two or three or four years, they are not as active as I was.

What has happened, because of some of the regulations we put in place, for example, is that US automakers make much more efficient cars now. US utilities find that it's more efficient to produce energy differently than they used to. Many of the initiatives that we've put forward are now embedded in the economy and give us a chance to continue on this progress -- probably not as fast as I would like but, as I've said before, history doesn't always move in a straight line. Sometimes it zigs and zags.

ARD/SPIEGEL: In many Western societies, there is a groundswell of alienation between politicians and the citizens, and people are asking: "Are politicians at all in touch with everyday life?" People are anxious. We're talking about populism, of course. Is this a pivotal moment for leadership?

Obama: I think it is. Look, I was elected because I believed in what we call "grassroots politics," politics from the bottom up, not the top down. And I was able to excite and engage people who previously hadn't been involved in politics, and part of the reason that I was able to be re-elected and stay relatively popular in the United States was because even when the economy was bad or we had problems, people sensed that I listened to them and I was on their side.

I do think that all politicians today have to be more attentive to people wanting to be heard, wanting to have more control over their lives. The more we can encourage participation, I think the better off we are. Here in Europe, for example, some of the challenges have to do with structures that are so complicated. You've got Brussels, and you've got parliament, you've got councils and then you've got national governments. So people sometimes don't feel as if they know who's making decisions, and the more that we can bring people in and engage them, the better. Some of it is also cultural and social, people's sense of identity. You have social media and the Internet and immigration and so, suddenly, cultures are clashing and people feel as if they're less familiar with the people around them. That causes social anxieties.

ARD/SPIEGEL: What was the darkest moment of your presidency? Here in Europe, of course, people will talk about drone attacks, Guantanamo and, of course, about terrorist attacks and shootings.

Obama: Look, early on, I think people didn't fully appreciate how severe the economic crisis was, partly because we took smart steps, and we were able to avert complete disaster. But there were weeks where I wasn't sure whether we were going to be able to pull out of the crisis. For me, personally, the most difficult moments had to do with not just terrorist attacks, but also shootings.

You will recall that there was an event at Sandy Hook Elementary School, where 20 six- and seven-year-old children were shot by a troubled young man, and I had to meet with the parents just two days after they had lost their child. The pain that they feel is hard to describe and will always haunt me.

Internationally, I have obviously been deeply concerned about how we fight the terrorist threat. How do we make sure that we don't change, even as we protect our people? I'm very proud of the fact that we ended torture. It's true that I have not been able to completely close Guantanamo, but we've drastically reduced the population from 700 or so to around 60 now, and I am going to continue in these two months to make every effort.

We have created a legal structure that is much more disciplined and consistent with rule of law and international norms. I know that drones have been a source of concern for a lot of people, understandably, but if you look at how we have constrained their use, we've created a framework that is consistent with how all of us going into the future should be thinking about minimizing the loss of life, but also being able to reach terrorist organizations in countries that sometimes don't have the ability to capture them. The alternative in some cases is to invade these countries where there would be much greater loss of life, and so we have to make difficult choices in these situations.

The good news is we've had very strong allies. In Europe, where the terrorist threat is probably greatest at the moment, the amount of information-sharing that's been taking place, the effectiveness of law enforcement across borders gives us the ability to protect ourselves while still being true to the basic precepts of our liberal democracies. I hope that that continues, and it is something that I think we should be worried about.

ARD/SPIEGEL: You have praised Angela Merkel, but you also said there is a free-ride mentality among American partners, that a large amount of the work is left to the Americans. Donald Trump has said that American engagement has to be reduced. Is this the moment for Western leaders like Angela Merkel to step up and assume more leadership?

Obama: Angela Merkel has been an extraordinary partner for me and for the United States throughout my presidency. One of the great qualities of Chancellor Merkel is that she is steady. She analyzes a situation. She's honest. Sometimes we've had disagreements, but when we do, it's very constructive. And we are consistently open with each other about how we should approach these issues.

But I do believe that Chancellor Merkel and Germany are a lynchpin in protecting the basic tenets of a liberal, market-based democratic order that has created unprecedented prosperity and security for Europe, but also for the world. I think sometimes Europe may take for granted the extraordinary progress that's been made over the last 40, 50 years. I recognize that sometimes there is great frustration that arises out of the euro zone or out of the EU.

Probably at no time in human history has there been as much prosperity and security as has existed in Europe during this period. The reason is because the values that we share -- freedom of speech, freedom of religious practice, freedom for civil society, free and fair elections, all the innovation that's been created through a market-based economy -- those things are ultimately going to be the path for us to continue into a better future. I hope that, despite some of the challenges we have, that people appreciate that. And I hope people appreciate Chancellor Merkel because, although she traditionally is considered center-right and I'm considered center-left, the truth is that we share those core values, and those are worth protecting. As the senior leader in Europe, as the leader who's been longest lasting, I think she has great credibility, and she is willing to fight for those values. I'm glad that she's there, and I think the German people should appreciate her. Certainly, I have appreciated her as a partner.

ARD/SPIEGEL: Are you going to pardon Edward Snowden?

Obama: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security. Those who pretend that there's no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don't recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.

And those who think that security is the only thing and don't care about privacy also have it wrong.

We have to find ways in which, collectively, we agree there's some things that government needs to do to help protect us, that in this age of non-state actors who can amass great power, I want my government -- and I think the German people should want their government -- to be able to find out if a terrorist organization has access to a weapon of mass destruction that might go off in the middle of Berlin.

That may mean that, as long as they do it carefully and narrowly, that they're going to have to find ways to identify an email address or a cell phone of a network. On the other hand, it's important to make sure that governments have some checks on what they do, that people can oversee what's being done so the government doesn't abuse it. But we shouldn't assume that government is always trying to do the wrong thing.

My experience is that our intelligence officials try to do the right thing, but even with good intentions, sometimes they make mistakes. Sometimes they can be overzealous. Our lives are now in a telephone, all our data, all our finances, all our personal information, and so it's proper that we have some constraints on that. But it's not going to be 100 percent. If it is 100 percent, then we're not going to be able to protect ourselves and our societies from some people who are trying to hurt us.

ARD/SPIEGEL: Mr. President, we thank you for this interview.