US ponders Snowden issue: Is he a whistle-blower or a spy?

By Margaret Talev  /  Bloomberg

Sun, Jan 12, 2014 - Page 9

US President Barack Obama and his advisers are not discussing clemency for Edward Snowden as they draw up a response to the backlash over US government surveillance, according to an administration official with knowledge of the deliberations.

Obama is set to announce limits on the US National Security Agency’s (NSA) sprawling surveillance programs as soon as next week. The president has already signaled that 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 US Foreign Intelligence Surveillance Court.

The former NSA contractor who triggered worldwide scrutiny of US spying is not 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 is not what we want them to do,” said Stewart Baker, a Washington lawyer who previously headed the US Department of Homeland Security’s policy directorate.

The US has charged Snowden with theft and espionage for leaking documents to the Guardian and Washington Post last year, which 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 US and from foreign leaders.

He fled the US, first to Hong Kong and then to Russia, where he has 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 US could be assured that any data he still has could be secured.

Ledgett’s outgoing boss, General 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 US court system if he ever were to return.

Whistle-blower advocacy group in Washington the Government Accountability Project’s Jesselyn Radack 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 is one of Snowden’s legal advisers.

He has also gotten public support from one of the most famous US whistle-blowers, Daniel Ellsberg, who leaked Pentagon documents about the US 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.

“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.”