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COLUMN-Plotting the Snowden plea bargain

Source: Reuters - Mon, 16 Dec 2013 10:42 PM
Author: Reuters
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(The opinions expressed here are those of the author, a columnist for Reuters.)

By Jack Shafer

Dec 16 (Reuters) - CBS News gave the National Security Agency an early Christmas present on Sunday - a segment on "60 Minutes." The title of the segment, "NSA Speaks Out on Snowden, Spying," telegraphed the network's generosity. After taking beatings in the press and in Congress, NSA Director Gen. Keith Alexander reached out to "invite" (which is how CBS News put it) the program to receive the NSA's version of the Snowden affair. "What they got was a chance to make their case," said correspondent John Miller.

The segment contained the usual NSA evasions and elisions (see the blog work of Jesselyn Radack for examples), so besides the novelty of network cameras recording images inside the puzzle palace, the only non-trivial moments of the broadcast came when Rick Ledgett, head of the NSA task force in charge of Snowden damage assessment, gave a positive response to Miller's question of what he thought of the idea of acceding to Edward Snowden's request for amnesty.

"What would your thought on making a deal be?" asked Miller. Ledgett responded:

"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."

Ledgett's trial balloon was aloft for about one second before Gen. Alexander appeared on the screen to throw a wad of buckshot at it. Playing the bad cop to Ledgett's good cop, he said, "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?" Then he added, "I think people have to be held accountable for their actions."

White House press secretary Jay Carney relieved the balloon of its remaining helium in a briefing today, saying that the administration's opposition to amnesty for Snowden had not changed.

Yet why would the NSA, which "60 Minutes" describes as ultra-controlling of what was said and seen during the visit in its "behind the scenes" video, allow Ledgett to entertain the idea at all on national TV, even if he was just expressing his "personal view," when we all know that NSA officials have no "personal views," especially ones they can share on TV?

The best answer that comes to mind is that Ledgett was authorized to open negotiations with Snowden via "60 Minutes." Previously, Gen. Alexander has said Snowden shared between 50,000 and 200,000 documents with reporters. In the broadcast, Ledgett allows that perhaps 1.7 million documents could have gone out the door with Snowden, including a 31,000-document "road map" of "what we know, what we don't know" about foreign powers, as Ledgett put it.

"It is the keys to the kingdom," Ledgett said.

If these keys were leaked, they have not yet been published. The kingdom's half-hearted amnesty/plea bargain overture was obviously designed to sway Snowden, who can't be happy living under the thumb of Russia's Federal Security Service.

How exactly would an amnesty deal or a plea bargain work? Snowden was charged in June with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications information with an unauthorized party, as the Popehat blog delineated, and if convicted he could spend decades in prison. Would the government reduce or eliminate these charges if he agreed to come home, returned the keys to the kingdom, disabled the "doomsday cache" he's rumored to have hidden in the cloud, and convinced journalists Glenn Greenwald, Laura Poitras, and Barton Gellman into returning to the NSA the unpublished documents he gave them?

Such a deal would be unprecedented, but both sides have an incentive to negotiate. By holding out the possibility - however remote - of amnesty or a plea bargain, the government signals to Snowden its willingness to forgive previous transgressions if he agrees not to liberate the keys to the kingdom. (The high bar of "assurances" to which Ledgett referred.) Such a deal might appeal to Snowden, who seems to be enjoying his Russia interlude as much as you would a similar stay at a North Korean minimum security prison. The political hurdles for such a deal would be unusually high, as it would further undermine President Barack Obama's already tattered national security credentials. But seeing as Obama doesn't have to run again, the credentials won't matter much longer. His people could spin the Snowden amnesty deal - let's say, two years in prison but unlimited Internet play time for the blond jailbird - as being in the best interests of the nation.

If you read Gen. Alexander's imperfect analogy to a hostage taker closely, he doesn't seem to be completely ruling out a deal, either. Snowden hasn't "shot" anybody - he's broken inviolable laws, but he's not got any blood on his hands. Prosecutors cut deals with defendants all the time without many people accusing them of letting crooks get off easy. I'll bet Gen. Alexander would make that deal if assured that future Snowden NSA leaks would be stopped.

But maybe the NSA line hasn't been baited for Snowden alone. Maybe a deal with Russia is also in play. By volunteering the fact that Snowden, and maybe the journalists he's leaked to, hold the keys to the kingdom, Ledgett increased Snowden's market value by an order of a million. By offering and withdrawing amnesty on TV, the U.S. government could be playing both Snowden and Russia simultaneously. If Snowden spurns the deal, the U.S. government might attempt to persuade the Russians, never sticklers for the rule of law, to declare Snowden a spy and therefore eligible for exchange for some high-value Russian spy currently in U.S. custody. Or, for the next Russian spy busted, making Snowden like the player traded for a future draft pick.

Snowden is in play. The next move is his. (Jack Shafer)

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