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Eager to prevent more revelations, Obama administration might consider a light sentence -- but offers no promises

Thanks to one man, the people of the United States now have evidence of exactly how exactly the federal government is using general warrants and forcing Americans to pay tens of billions a year to effectively spy on themselves. 
 
In the past seven months America was confronted with the cold reality through a series of releases that revealed that the government -- via the National Security Agency (NSA) -- was spying on virtually every American with a mobile phone or internet, typically storing your personal data for 15 years in "temporary" storage
 
I. Pardon? Nope. Leniency? Maybe.
 
Now the administration of President Barrack Obama has offered a vague promise of possible leniency if the man behind those leaks -- former U.S. Central Intelligence Agency (CIA) analyst and NSA contractor Edward Joseph Snowden -- agrees to a strict set of terms.

Edward Snowden
Edward Snowden has currently been granted refugee status in Russia.
[Image Source: Wikimedia Commons]

The administration is demanding that Mr. Snowden immediately stop his quest to disclose details of U.S. spying on Americans and American allies, destroying all remaining records.
 
Mr. Snowden has acknowledged that quest may have broken lesser U.S. laws, but he has asserted that if he did not disclose he would be violating the most sacred law of the land -- the U.S. Constitution.
 
That's not acceptable, says the Obama administration.  It has long argued that secrecy and the need for "protection" from a large federal presence, trump the Constitution.

We The People
Leaker Snowden says he's defending the Constitution.

In addition to giving up his efforts to defend the Constitution, Mr. Snowden would have to plead guilty.
 
President Obama's Attorney General, Eric Holder, disclosed at University of Virginia question and answer session what the U.S. would "maybe" be willing to do in return.  In exchange for ending the ongoing leaks, returning to the U.S. for trial and imprisonment, and pleading guilty, AG Holder says the U.S. Department of Justice's (DOJ) lawyers would be willing to "engage" Mr. Snowden's lawyers about possibly pleading guilty to a lesser set of offenses.  He remarked:
 
Instead, were he coming back to the U.S. to enter a plea, we would engage with his lawyers.
 

President Obama and Attorney General Eric Holder [Image Source: AP]

Civil liberties groups, citizen petitions, some business leaders, and even some members of Congress have encouraged the President and DOJ to consider a pardon for Mr. Snowden.
 
The President has refused the possibility of a pardon.  But he's growing desperate to find a way to otherwise stop Mr. Snowden from continuing to leak details.
 
II. More Leakers Loom in Wake of Misleading Speech
 
The President has reason to be nervous. 
 
While some intelligence analysts have expressed a desire to see Mr. Snowden dead in the ground, according to a recent anonymously sourced Buzzfeed piece, others are on the far side of the fence.  Some of the pressure from the intelligence in support of Mr. Snowden is merely political.  A group of former CIA officials went as far as to travel to Russia to present Mr. Snowden with a special award for his actions.
 
Others in the intelligence community are showing their support in a way far more dangerous to the administrations objectives -- by emulating Mr. Snowden's stand.

Jesselyn Radack, a lawyer who serves as the National Security and Human Rights Director at the Government Accountability Project (GAP) (whistleblower.org), says that more whistleblowers from the NSA are coming forward.  Inspired by Mr. Snowden's actions, she says "a handful" of individuals approach her and her colleagues over the summer.  She commented recently to ABC News:

I think the government hopes to chill speech by employees in the national security and intelligence fields, especially those at the NSA and CIA, but the unintended consequence is [that] more and more whistleblowers are coming through the doors of the Government Accountability Project (GAP).  I think courage is contagious, and we see more and more people from the NSA coming through our door after Snowden made these revelations.

There definitely could be more revelations in addition to those that Snowden has revealed and that are continuing to come out.

Aside from inspiring more leakers, Mr. Snowden and his press allies, such as Guardian columnist Glenn Greenwald, have strongly hinted that more details of domestic spying programs may be on the way.
 
The Obama administration is at a critical juncture as the President last week delivered a speech urging Congress not to limit the NSA's powers while seemingly promising to use his executive authority to stop domestic surveillance.

Obama on NSA spying
The Obama administration is hoping bring Mr. Snowden in could kill true discussion about the federal government spying on everyday Americans. [Image Source: The Washington Post]

Upon closer inspection the speech's language and certain comments revealed the President's true intention was not to stop spying at all, but to continue it, while making certain vague, unverifiable, and/or marginally consequential promises of new accountability efforts.
 
III. Public Image Limited
 
The White House was very hopeful that this double wording would go unnoticed.
 
Unfortunately it wasn't, as top civil liberties agencies and many news agencies were savvy enough to decode the President's message.  Even the public seemed relatively aware (as much as they were aware of the NSA issue in the first place) of the distance between words and reality.  

Congress is currently mulling over legislation that would end general warrants -- a legal construct that was last used against the American public by the British empire under the days leading up to the American Revolution.
 
The Obama administration is quietly pushing Democrats and its Republican allies in Congress to reject this measure. 
 
But what about Mr. Snowden?  Is it a good deal for him?
 
All things considered, the deal carries no guarantees.  Assuming some reduction of the maximum sentence -- say to 10 to 15 years -- is offered, the deal isn't particularly good.  But it also isn't quite as bad as you might think.

Currently Mr. Snowden stands charged with three offenses:
The U.S. clearly has a relatively weak case against Mr. Snowden, largely because it can't prove exactly what documents he provided journalists and what records he took.  Pfc. Bradley Manning, who leaked a larger but less impactful set of documents, was changed with a number of counts of espionage and government theft, among other charges. 
 
However, he discussed his activities in great detail before his arrest in logged conversations.  Furthermore, he used his own access to obtain documents, which were further traceable since he was accessing them from a remote location (while deployed in Iraq).  By contrast Mr. Snowden cleverly gained the credentials of other NSA officials (according to accounts), so it’s virtually impossible to prove he used those credentials and what actions on each account were his.
 
Perhaps conceding that multiple Espionage Act offenses would be impossible to prove, the DOJ begrudgingly conceded to only charge Mr. Snowden with a single count on each violation.
 
That means at most, if a judge was to go for the harshest consecutive sentence, he would earn 30 years in prison and be ordered to pay up to $750,000 USD in restitution.
 
IV. Reports About Snowden "Waiting Out" Charges: Inaccurate
 
One legal inaccuracy that's been floating about and needs to be debunked in the notion that if Edward Snowden waits things out, the government will be unable to try him a decade or two down the road.
 
It is true that the U.S. most charges carry of statute of limitations.  Theft of Government Property carries a limit of five years.  In other words, by sometime in late 2018, the first charge would no longer be legally possible [PDF].  The same appears to be true about the 18 U.S. Code § 798 (a)(3) charge.
 
But the first flaw in the "statute of limitations" strategy is that the Violent Crime Control and Law Enforcement Act of 1994 changed language in 18 U.S. Code § 794 to state that charges under 18 U.S. Code § 792-794 have no statute of limitations.
 
So in theory even if the clock was ticking, no new charges are filed, and the law doesn't change, Mr. Snowden would still face at least 10 years in prison.
 
But that premise is still flawed as 18 U.S. Code § 3290 clearly states:
No statute of limitations shall extend to any person fleeing from justice
Most recently it was revealed that the NSA had two entire factories devote to installing bugs on consumer electronics and was installing tens, if not hundreds of thousands of bugs a year.
 
So in some ways if the Obama administration did follow through with its promise of amnesty, the deal would perhaps be the best hope of Mr. Snowden walking as a free man in the U.S. within the next decade.
 
V. Should One Trust the Untrustworthy?
 
On the other hand the deal also has its flaws.  The most glaring is that the administration has already proven that it can't be trusted.  Given the degree of double talk emanating from the Obama regime, Mr. Snowden may be hesitant to trust the Obama administration to deliver a fair trial and partial amnesty, even if he cooperates.
 
Second, while the statute of limitations is not an option, it's possible that a future President could offer either a more concrete amnesty deal or even a Presidential pardon. Senator Rand Paul (R-Kent.) -- a contender for the White House in 2016 -- has expressed much more mixed thoughts on Mr. Snowden, indicating partial amnesty might be the best path given the unconstitutional actions by the NSA that the whistleblowing revealed.

Sen. Rand Paul
Sen. Rand Paul (R-Kent.) [Image Source: The NYT]

Lastly, Mr. Snowden still appears to have most of the leverage.
 
The leaker is currently relatively safe from raids or extradition attempts as he's currently residing in Russia outside of Moscow.  During his process of turning over documents to reporters in June, he had first fled to Hong Kong, China, then flew to Russia.  For some time he was stuck at the airport in Moscow, before being granted asylum in August.
 
The initial asylum deal lasted one year and officially called upon Mr. Snowden to do more leaking.  Russia is considering an extended asylum status for Mr. Snowden, who recently got a job working as a web developer for a top Russian commercial website.
 
Aleksei K. Pushkov, chairman of the foreign affairs committee in Russia’s lower house of Parliament, said Friday at the World Economic Forum:

He will not be sent out of Russia.  It will be up to Snowden.  The U.S. has created a Big Brother system.

The accusation is seemingly accurate, if ironic considering the source.

Mr. Snowden has denied that the asylum damages his credibility or that he is "spying for Russia".  He commented to The New Yorker recently:

[The spying claims]] won’t stick … because [they're] clearly false, and the American people are smarter than politicians think they are.  It’s not the smears that mystify me. It’s that outlets report statements that the speakers themselves admit are sheer speculation.

But he faces a tough decision about what his long term objectives are.  If he does wish to return to the U.S., his home country, he must come to grips with the fact that he will likely serve prison time.  Timing is certainly an important thing for him to consider, given political factors and their potential impact on his legal status.

VI. Spying Revelations Continue

If he's considering the deal, he gave no sign of it. Earlier this week the leaker said in an interview there was "no chance" that he would receive a fair trial in the U.S. and that he had no current plans to return to his home country.

He also stoked discussion of the potential for the U.S. to use its all seeing eye to perform corporate espionage against domestic and international firms on behalf of campaign donors or the military.  He comments:

If there is information at Siemens that they [the NSA] think would be beneficial to the national interests, not the national security, of the United States, they will go after that information and they'll take it.

This statement calls into question comments by President Obama, who in his recent speech said:

We do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors.

The President may be speaking honestly, but the administration is on the defensive after a particularly damaging set of information released just before the New Year.
 
That information indicated that the NSA was attacking both Americans and citizens of ally nations with malware, via auto-generated queries.
 
While the Obama administration claims there's "no sign of abuse" via such activities, the facts say otherwise.  Recently documents reveal the NSA "accidentally" breaks the law over 3,000 times in a single year after obtaining expanded powers via general warrants granted in 2011.  Many violations are minor, but others are more serious.  Eight agents, at least, were found to have spied on their current or former lovers, a practice called "LOVEINT".
 
The NSA also reportedly paid tens of millions to security firms and hackers to try to sabotage global encryption standards, putting Americans personal finances and even national security at risk.
 
Given the NSA's monitoring of fiber cables carrying confidential financial information and its efforts to crack encryption, foreign companies have come to increasingly view U.S. firms with suspicion.  Given the Obama administration's spying and close ties with large American special interests such as JPMorgan Chase & Comp. (JPM), many overseas buyers now feel it is simply safer not to do business with the U.S., much as China was long avoided for similar security fears.
 
This betrayal of trust is expected to cost Americans more than just taxes and civil liberties.  Industry experts say the spying revelations could cost American businesses $35-45B USD over the next three years. In Asia alone, sales were down $1.7B USD in Q3, as Asian customers turned to domestic options, wary of U.S. spying.  European customers are staying away from American products at a higher rate, as they believe they are untrustworthy.
 
VII. Freakenomics: U.S. Spent $150B+ to "Maybe" Stop One Terrorist Attack
 
Intelligence budgets peaked during Obama's first term (data sources: 1, 2, 3, 4) and remain high, as money has been shuffled from military intelligence to national intelligence:
 
intelligence budget
National intelligence program (NIP) and military intelligence program (MIP) budgets under Presidents Bush and Obama. [Image Source: Jason Mick/DailyTech LLC]

After spending an estimated $150B+ (out of six years' combined intelligence budget of $300B USD) one would hope for some sort of results.  But in the years since President Obama took office, retiring/resigning NSA Director Gen. Keith Alexander could only identify one, or possibly two terrorist "plots" that were stopped with the help of spying.

The massive spending, minimal returns, and willingness of the Obama administration to help sabotage encryption suggests that securing the nation is not the true objective of the spying program.  It is unclear what the true objective is.

Given all that's at stake it's not suprising that Mr. Snowden is wary of being paraded as a "guilty" criminal in exchange for sentencing amnesty.

Sources: Eric Holder at Univ. of Viriginia Miller Center, The New York Times [1], [2], BBC News





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