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Time To Play “Let’s Make A Deal” With Edward Snowden?

Edward-Snowden

Some seven months after he left the country and the employ of his Booz Allen Hamilton, where he worked as a civilian contractor for the National Security Agency, Edward Snowden is still causing headaches for the the United States Government. Although the information leaking out from what Snowden apparently absconded with on the laptops that he has carried with him from Hawaii to Hong Kong to Moscow is not  longer at the volume it was over the early summer, there are still stories that pop up every now and then either in The Guardian, which has been the primary outlet for his communication with the outside world, or in various foreign newspapers. Meanwhile, Snowden himself remain relatively safely ensconsed in exile in Russia where he is apparently employed by the Russian equivalent of Facebook, and the NSA is coming to admit that they really don’t know how much information Snowden walked away with when he left the country:

WASHINGTON — American intelligence and law enforcement investigators have concluded that they may never know the entirety of what the former National Security Agency contractor Edward J. Snowden extracted from classified government computers before leaving the United States, according to senior government officials.

Investigators remain in the dark about the extent of the data breach partly because the N.S.A. facility in Hawaii where Mr. Snowden worked — unlike other N.S.A. facilities — was not equipped with up-to-date software that allows the spy agency to monitor which corners of its vast computer landscape its employees are navigating at any given time.

Six months since the investigation began, officials said Mr. Snowden had further covered his tracks by logging into classified systems using the passwords of other security agency employees, as well as by hacking firewalls installed to limit access to certain parts of the system.

“They’ve spent hundreds and hundreds of man-hours trying to reconstruct everything he has gotten, and they still don’t know all of what he took,” a senior administration official said. “I know that seems crazy, but everything with this is crazy.”

That Mr. Snowden was so expertly able to exploit blind spots in the systems of America’s most secretive spy agency illustrates how far computer security still lagged years after President Obama ordered standards tightened after the WikiLeaks revelations of 2010.

Mr. Snowden’s disclosures set off a national debate about the expansion of the N.S.A.’s powers to spy both at home and abroad, and have left the Obama administration trying frantically to mend relations with allies after his revelations about American eavesdropping on foreign leaders.

A presidential advisory committee that has been examining the security agency’s operations submitted its report to Mr. Obama on Friday. The White House said the report would not be made public until next month, when Mr. Obama announces which of the recommendations he has embraced and which he has rejected.

Mr. Snowden gave his cache of documents to a small group of journalists, and some from that group have shared documents with several news organizations — leading to a flurry of exposures about spying on friendly governments. In an interview with The New York Times in October, Mr. Snowden said he had given all of the documents he downloaded to journalists and kept no additional copies

In an interview with CBS News’s John Miller that will air tonight on 60 Minutes, Rick Ledgett, who has been heading up the NSA task force charged with investigating exactly how Snowden was able to extract the documents that have already been made public, many of which he apparently should not have been able to access with the security clearance that he did have, and what he may have absconded with that has not been revealed yet, suggested that it’s time to consider amnesty for the former contractor:

JOHN MILLER: He’s already said, “If I got amnesty, I would come back.” Given the potential damage to national security, what would your thought on making a deal be?

RICK LEDGETT: So, my personal view is, yes, it’s worth having a conversation about. I would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high. It would be more than just an assertion on his part.

MILLER: Is that a unanimous feeling?

LEDGETT: It’s not unanimous.

Among those who think making a deal is a bad idea is Leggett’s boss, Gen. Keith Alexander.

GEN. KEITH ALEXANDER: This is analogous to a hostage-taker taking 50 people hostage, shooting 10 and then say, “If you give me full amnesty, I’ll let the other 40 go.” What do you do?

MILLER: It’s a dilemma.

GEN. ALEXANDER: It is.

MILLER: Do you have a pick?

GEN. ALEXANDER: I do. I think people have to be held accountable for their actions. … Because what we don’t want is the next person to do the same thing, race off to Hong Kong and to Moscow with another set of data, knowing they can strike the same deal.

The choice here, of course, is between continuing the efforts to bring Snowden to Justice and prosecute him under the indictment that has already been filed against him in Federal Court, along with any additional charges that may be warranted by what has obviously been an ongoing investigation, and cutting some kind of deal with the man that would include Snowden agreeing to cooperate by assisting the Federal Government in understanding both how he was able to access the documents in question without being detected and what it was exactly that he took with him when he left the country. On the one hand, there’s the issue that, without Snowden’s help, the NSA may never know exactly how much they’ve been compromised, or even how it was done, thus making it more difficult for them to prevent it from happening in the future. On the other, as General Alexander notes, cutting a deal now that includes full amnesty would serve no deterrent value to a future Edward Snowden who might try to do the same thing and, instead of sharing the information they abscond with journalists, selling it to the highest bidding foreign intelligence agency. If a deal is to be made, a more ideal solution would be one in which Snowden pleads guilty to lesser charges and ends up with a lighter prison sentence in exchange or his cooperation noted above. That would be closer to a normal plea bargain, and it would at least send some message to future Snowden’s that stealing national security secrets, regardless of your motives, is not without consequences.

All of this talk about making deals may be moot, of course, if Snowden isn’t interested in talking about such a deal. So far, he’s managed to spend the better part of seven months living beyond the reach of American law enforcement, and there doesn’t seem to be any reason why that can’t continue. His asylum in Russia is only supposed to last one year, but it’s entirely possible that this could be extended indefinitely if the government (i.e., Vladimir Putin) is inclined to do so. If Snowden doesn’t wish to place his fate in the hands of the mercurial Putin, who could easily see using Putin as a pawn in efforts to strike a deal with the United States on some other issue, then he still apparently has offers of asylum from three South American nations (Venezuela, Bolivia, and Ecuador) that he could take advantage of, along with the option of taking up residence in one of the nations in which the United States does not have an Extradition Treaty, although that last option is somewhat more risky. In other words, absent a deal or his unlikely decision to give up and come home, the odds are fairly good that Edward Snowden will remain beyond the grasp of U.S. law enforcement for the foreseeable future.

So, the question remains. Deal, or no deal?

As a closer, here’s a preview of tonight’s 60 Minutes report (h/t Jazz Shaw)

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Mu says:

    If you cross reference the countries we don’t have an extradition treaty with with the countries we operated drone strikes in that doesn’t leave to any other options for Snowden.

    Like or Dislike: Thumb up 2 Thumb down 1

  2. OzarkHillbilly says:

    Hell, he’s stuck in Russia. Is not that a fitting enough punishment? OK, OK, we do have a constitutional injunction against cruel and unusual punishment, but still….

    Like or Dislike: Thumb up 4 Thumb down 0

  3. C. Clavin says:

    We established the standard with Bush and Cheney.
    If those admitted war criminals are free…why in the world should Snowden be prosecuted?

    Like or Dislike: Thumb up 10 Thumb down 5

  4. rudderpedals says:

    ISTM far more important to know exactly which keys to the kingdom were compromised than it is to exact retribution.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. michael reynolds says:

    No amnesty.

    We’ve done a pretty good job during the Obama administration of demonstrating the reach of the American fist. After Mr. Carter’s passivity with Iran, and Mr. Reagan’s impotence after his Beirut debacle, and Mr. GW Bush’s weakness with the Cole incident, his extension of amnesty to Gaddafi and incompetence with Osama Bin Laden, we’re finally beginning to show that screwing with the world’s only superpower is a bad idea.

    I like sending that message. We are the world’s biggest bulls-eye, we need the world’s most certain capacity to strike back. We cannot be the most powerful nation on earth and tolerate attacks on our security. Snowden can freeze in Moscow, or he can leave and spend the rest of his life in prison.

    Like or Dislike: Thumb up 7 Thumb down 6

  6. James Joyner says:

    @michael reynolds: The Cole bombing took place in December 2000, in the waning days of the Clinton administration. Otherwise, I concur. The secrets that Snowden stole are in the hands of our adversaries at this point. There’s nothing to be gained by placing nice with the traitor.

    Like or Dislike: Thumb up 6 Thumb down 2

  7. michael reynolds says:

    @James Joyner:

    I thought that about the Cole, too, so I checked. From Wiki:

    On January 25, Tenet briefed the President on the Cole investigation. The written briefing repeated for top officials of the new administration what the CIA had told the Clinton White House in November. This included the “preliminary judgment” that al Qaeda was responsible, with the caveat that no evidence had yet been found that Bin Ladin himself ordered the attack… in March 2001, the CIA’s briefing slides for Rice were still describing the CIA’s “preliminary judgment” that a “strong circumstantial case” could be made against al Qaeda but noting that the CIA continued to lack “conclusive information on external command and control” of the attack.[43]

    According to Rice, the decision not to respond militarily to the Cole bombing was President Bush’s. She said he “made clear to us that he did not want to respond to al Qaeda one attack at a time. He told me he was ‘tired of swatting flies.’” The administration instead began work on a new strategy to eliminate al-Qaeda.[44]

    I don’t doubt there are examples for Mr. Clinton and for George HW Bush, too, but my memory didn’t immediately serve them up.

    Like or Dislike: Thumb up 6 Thumb down 1

  8. Patrick Watson says:

    General Alexander is right about accountability. He can start by holding himself accountable and resigning.

    The fact that Snowden took such massive volumes of information is a management failure. Alexander is responsible for the damage. Why does he still have a job, and why does anyone listen to him?

    Like or Dislike: Thumb up 5 Thumb down 1

  9. Woody says:

    Though I’m not as sold on Snowden As Traitor (he certainly might be), I wouldn’t cut a deal either. The deterrence thing doesn’t matter one whit – it doesn’t work in capital murder; nor did it make much difference during the Cold War.

    My guess is that the only information the Feds don’t have is what exactly he copied. I’d wager they already know how he copied it off (actual security procedures would be a cut into Booz Allen’s profits – and swisscheese security surely isn’t confined to this one firm).

    I still think that in the not-so-distant past, Mr Snowden wouldn’t have such a compelling need to go overseas – we had a more trustworthy government (maybe) and an actual press corps (undoubtably), as opposed to the insipid toadies we have now. Whatever one may think of his motives or him personally, he’s exposed troubling public-private entities that bear attention and maybe investigation (we’d need a Congress for that, though).

    Like or Dislike: Thumb up 4 Thumb down 0

  10. Jenos Idanian #13 says:

    It pains me greatly to say this, but a deal just might be the best resolution to this. Find out just what he compromised and how, even if it means he walks.

    The alternative, of course, is to just kill him. I wouldn’t take that off the table, either.

    And letting it get out that those are the two options being weighed just might make Snowden a bit more cooperative.

    Like or Dislike: Thumb up 4 Thumb down 0

  11. Jeremy R says:

    RICK LEDGETT: So, my personal view is, yes, it’s worth having a conversation about. I would need assurances that the remainder of the data could be secured, and my bar for those assurances would be very high. It would be more than just an assertion on his part.

    Snowden hasn’t offered to somehow try and secure the data, and Greenwald / Poitras would never give it back even if he did (their selling out to Peter Omidyar, to the tune of 250 million, obviously is contingent on continuing to exploit the stolen document trove for years to come). The point being, neither Alexander nor Ledgett would accept the ridiculous terms Snowden has floated, and beyond that, what Ledgett is suggesting will never happen.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Patrick Watson says:

    @Jenos Idanian #13: Jenos, Eric Holder already took death penalty off the table in his letter to the Russians seeking extradition – though I suppose they could always claim that only applies if he surrenders.

    In either case, if we permit extrajudicial executions without even the fig leaf of “imminent threat” that justifies drone killings, we no will longer need NSA to protect the Constitution. We will have declared it null and void. Russia, China and others would quickly remind us of that fact, too.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. HarvardLaw92 says:

    @James Joyner:

    I concur. Whatever information he absconded with has certainly already been viewed and dissected with glee by both China and Russia, and by association whichever other countries they may decide to share it with, so there is nothing at all to be gained by extending any sort of amnesty. The cat is out of the bag at this point, and you can’t unring a bell.

    The people at NSA will eventually unravel exactly how he managed to steal the information, what was stolen and mitigate the security holes thus revealed – with or without Snowden’s involvement – so I say let him enjoy the bed that he has made for himself.

    He is basically trapped in Russia, unable to travel to or through any country with which we have extradition agreements, so let him freeze his ass off in his de facto cell and ponder over the trainwreck he has reduced his life to being. It’s a suitable punishment IMO.

    Like or Dislike: Thumb up 3 Thumb down 2

  14. Jenos Idanian #13 says:

    @Patrick Watson: Your second paragraph is where I was thinking. Obama has already asserted the right to order “extrajudicial executions” (nice phrase there — I might have to steal it). And his threat to release more documents at his discretion could be argued as an “imminent threat.”

    I’m not too fond of it, either, but Obama has placed it on the table. It’s an option, like it or not.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. Patrick Watson says:

    @Jenos Idanian #13: Yes. Feel free to run with “extrajudicial execution.” I don’t know where I first heard it but doubt I am the first to use the term.

    Legality aside, I think practical and diplomatic considerations argue against killing Snowden.

    First, I would not assume we can successfully target him wherever he is inside Russia. In fact, I seriously doubt it. A failed attempt would be catastrophic, too, on the order of Jimmy Carter’s Desert One fiasco. Better to leave him wondering, as you suggest.

    Second, how would we like it if Russian agents entered the U.S. and killed a Russian citizen who had been here legally? Of course, we would not like it at all and would protest vigorously.

    Putin would have to retaliate and is far more ruthless than we are. At the very least, killing Snowden on Russian soil would rub salt into already-wounded relationships with the rest of the world.

    Third, there is the uncertainty of Snowden’s alleged “dead man switch.” Killing him might trigger even more damaging disclosures than already happened. If Snowden really took as many documents as they say, and the U.S. really doesn’t know what he has, killing him would be a huge gamble.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Jenos Idanian #13 says:

    @Patrick Watson: I respect your pragmatic arguments, and suggest a refinement on my earlier point: let it leak that we are considering both amnesty and “extrajudicial execution,” and a decision is pending.

    “Extrajudicial execution.” A bit legalistic, but far less euphemistic than “sanction” or “wet work” or a host of other terms used in the past.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Patrick Watson says:

    @Jenos Idanian #13: Fair enough. Leaving a little doubt might accomplish the goal at a much lower cost.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. An Interested Party says:

    Second, how would we like it if Russian agents entered the U.S. and killed a Russian citizen who had been here legally?

    Well, it isn’t like they haven’t done that kind of thing before…

    Like or Dislike: Thumb up 2 Thumb down 0

  19. JohnMcC says:

    @Patrick Watson: You could use that google machine and look up Orlando Letelier. You’d discover that the Chilean gov’t killed a Chilean citizen in Washington DC back in the day.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. al-Ameda says:

    I do not see Snowden as a hero at all. That said, Edward Snowden should be encouraged to return to America and face legal consequences – go to trial. I am positive that there are many advocacy groups who feel that the government greatly overreached in the scope of the data mining and surveillance, and who would strongly support his trial and defense. He might very well prevail in court, and could well end up at a minimum security facility for a short period of time. Weighed against years of exile that might be a preferable course of action.

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  21. Fausta says:

    Bah.

    Snowden’s asylum in Russia ends next summer. You can safely bet Putin knows exactly what will happen to him then.

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