Snowden left in Russia's cold as Obama prepares limits on NSA
By MARGARET TALEV | Bloomberg News | Published: January 8, 2014
WASHINGTON — President Barack Obama and his advisers aren't discussing clemency for Edward Snowden as they draw up a response to the backlash over U.S. government surveillance, according to an administration official with knowledge of the deliberations.
Obama is set to announce limits on the National Security Agency's sprawling surveillance programs as soon as next week. The president already has signaled he favors some new limits on how telephone records are gathered and stored and creating a role for an independent civil liberties advocate at the Foreign Intelligence Surveillance Court.
The former NSA contractor who triggered worldwide scrutiny of U.S. spying isn't part of the debate, said the official, who asked for anonymity to talk about internal discussions.
Any deal for Snowden risks sending a message that "all future whistle-blowers should just take everything and leave the country immediately — and that's not what we want them to do," said Stewart Baker, a Washington lawyer who previously headed the Department of Homeland Security's policy directorate.
The U.S. government has charged Snowden with theft and espionage for leaking documents to the Guardian and Washington Post last year that unveiled the breadth of the NSA's collection of Internet and telephone records. The disclosures triggered protests from privacy advocates and technology companies in the U.S. and from foreign leaders.
He fled the U.S., first to Hong Kong and then to Russia, where he's been granted temporary asylum. In recent weeks, advocates for Snowden and the editorial page of the New York Times have called for leniency for him.
Even an NSA official who leads a task force on leaks, Richard Ledgett, said on CBS's "60 Minutes" program that amnesty or some leniency for Snowden would be "worth having a conversation about" if the U.S. could be assured that any data he still has could be secured. Ledgett's outgoing boss, Gen. Keith Alexander, has said he opposes making any deal.
The calls have touched off a debate over how to classify Snowden — as a whistle-blower, or as a spy — that goes to the heart of how he might be treated in the U.S. court system if he ever were to return.
Jesselyn Radack, of the Government Accountability Project in Washington, an advocacy group for whistle-blowers, and one of Snowden's legal advisers, said "a pardon or amnesty would be appropriate" for Snowden.
"It is unjust to use the Espionage Act on someone who's a whistle-blower and not a spy and has created a worldwide discussion that even the president has said needs to be had," said Radack, who's one of Snowden's legal advisers.
He's also gotten public support from one of the most famous U.S. whistle-blowers, Daniel Ellsberg, who leaked Pentagon documents about the U.S. involvement in the Vietnam War to the New York Times, the Washington Post and other newspapers more than 40 years ago.
The New York Times wrote in a Jan. 1 editorial that Snowden deserved "a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower."
There are protections in the law for individuals classified as whistle-blowers, designed to allow people with information about government wrongdoing to come forward without fear of retaliation. The president and his aides have repeatedly rejected that characterization of Snowden.
Obama hasn't directly addressed the question of a plea deal, saying that because Snowden is charged with crimes, he can't weigh in on the matter. He has said that Snowden should return to the U.S. and submit to the justice system.
"As important and as necessary as this debate has been, it is also important to keep in mind that this has done unnecessary damage to U.S. intelligence capabilities and U.S. diplomacy," Obama said at his final news conference of 2013.
Even some critics of the NSA and advocates for whistle- blowers in Congress agree with Obama that Snowden should face trial.
Sen. Rand Paul, R-Ky., a vocal critic of the NSA surveillance programs, said on ABC Jan. 5 that while Snowden "revealed great abuses" by the government, he should serve "some penalty of a few years in prison."
Sen. Charles Grassley, an Iowa Republican who has pushed for greater protection for national security whistle-blowers, said Snowden will have to deal with the consequences of his actions.
"I think it's sad that we didn't have whistle-blower protection for national security people," Grassley said in an interview this week. "If you don't have any respect for law then you don't have any order."
Baker said any incentive to consider a deal revolves around whether officials determine they could prevent the release of additional classified information.
"The longer it stays out there and the more it's handled the more likely it is that competent intelligence agencies in other countries will get the whole enchilada," Baker said.
Baker said it "would be probably prudent" for the administration to consider options if Snowden does approach the U.S. with an offer.
"We have released Soviet spies who stole important secrets from the United States in exchange for something or someone we wanted very badly," he said. "So the fact that nobody likes him is not really the end of the analysis."
Stephen M. Kohn, executive director of the National Whistleblowers Center in Washington, said the U.S. "has a lot to gain" from cooperating with Snowden.
"They need to do a risk assessment; they need to sit down with him and find out precisely how he did what he did," said Kohn, who has represented national security whistle-blowers as as well as Bradley Birkenfeld, a former UBS AG banker who got a $104 million whistle-blower award from the Internal Revenue Service after disclosing how the bank helped Americans evade taxes.
In turn, "I believe Snowden will be very unhappy in exile," Kohn said. "It's never a happy picture. He has a real interest in working something out that would permit his return to the United States."
Kathleen Clark, a law professor at Washington University in St. Louis, said the public debate initiated by Snowden's disclosures may hurt prosecutors' case.
"If it's in the public interest to have this debate about the NSA, then how can we possibly prosecute the person who instigated the debate?," said Clark, who also serves on the board of the Government Accountability Project. "The debate about clemency or a pardon is happening on a political level," she said. "It's not about technical legal standards."