“Mr. Snowden is not a whistle-blower,” White House press secretary Jay Carney said at a briefing in July last year.
Obama has not directly addressed the question of a plea deal, saying that because Snowden is charged with crimes, he can not weigh in on the matter. He has said that Snowden should return to the US and submit himself to the US 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 US intelligence capabilities and US diplomacy,” Obama said at his final news conference of last year.
Even some critics of the NSA and advocates for whistle-blowers in the US Congress agree with Obama that Snowden should face trial.
Republican Senator Rand Paul, a vocal critic of the NSA surveillance programs, said on ABC on Jan. 5 that while Snowden “revealed great abuses” by the government, he should serve “some penalty of a few years in prison.”
Republican Senator Charles Grassley, 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 on Tuesday. “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 US 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 Kohn, executive director of the National Whistleblowers Center in Washington, said the US “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 US$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.”