Snowden's Window for a Plea Deal Is Closing

The window for former National Security Agency contractor Edward Snowden to reach a plea agreement with the U.S. Justice Department is closing quickly.

That's what senior U.S. intelligence and law enforcement officials tell us about the man whose leaks they call the worst in U.S. history. These officials say any momentum for these negotiations is gone; his lawyers have not even had conversations about such a deal for nearly a year with the U.S. attorney prosecuting the case. The officials say the chance that Snowden will be offered a plea deal in exchange for cooperation is now close to non-existent.

There are three main reasons. The U.S. intelligence community today believes it knows more about what Snowden took than it did in 2014. Back then, the intelligence assessments assumed that every piece of data Snowden's Web crawler programs scanned was also copied and downloaded to files he later took. U.S. intelligence officials tell us that a more accurate picture has emerged of what Snowden actually took, as opposed to what he just scanned.

Another reason Snowden's value to the U.S. government has diminished is that most intelligence officials assume that whatever Snowden gave to journalists is also by now in the possession of the Chinese and Russian governments.

"Many people in government believe that the journalists who received Snowden's material are not capable of protecting it from a competent and committed state level adversary service," Ben Wittes, a national security law specialist at the Brookings Institution and an editor of the national security law blog Lawfare, told us. "Even if Snowden did not give the material to others, they argue it would have been ripe for the picking."

Finally, U.S. officials have asserted -- though without providing evidence to support the claim -- that state and terrorist adversaries have improved their methods of evading U.S. surveillance as a result of the Snowden leaks. In February, Mike Rogers, the NSA director, told a Washington think tank that the U.S. lost spying capabilities as a result of Snowden's disclosures.

All told, the value of Snowden's help -- to gauge and counter damage from the leaks -- has diminished considerably.

That's not to say there were not some holdouts. Just last month, the departing attorney general, Eric Holder, told Michael Isikoff that a "possibility exists" for a Snowden plea deal. Holder and President Obama in January 2014 publicly offered to at least discuss such the terms under which Snowden could return home.

Back then, Snowden's defense lawyers retained the services of Plato Cacheris, a lawyer renowned for negotiating plea agreements with individuals charged under the Espionage Act.

But neither side is posturing for a deal now. U.S. law enforcement officials tell us that Holder's successor, Loretta Lynch, has shown no interest in striking a plea bargain for Snowden. She said as much last month at the Aspen Security Dialogue in Colorado. When we asked her whether she would entertain such a bargain for Snowden, Lynch said: "His status is what it has always been: He's a federal fugitive. And if he chooses to come back, or if he is brought back, he will be accorded all the due process of every defendant in our criminal justice system."

That prospect doesn't sound too tempting to Snowden's team. One of his lawyers, Ben Wizner, who is also an attorney with the American Civil Liberties Union, told us: "Why would Edward Snowden plead guilty to felonies, give up his civil rights and walk into a prison when he is able from his place of exile to live a meaningful life and to participate in a rich and fulfilling debate he helped shape?"

And there is something to this. The New York Times in May produced a short video that showed how Snowden was able to address events all over the world from Moscow. Stories based on Snowden documents continue to drive the national security news cycle, the latest being a New York Times investigation on the willingness of AT&T to cooperate with the NSA's dragnet surveillance. Already his leaks have led Congress to end the government's bulk collection of telephone metadata and instead require the U.S. government to access such data from the telecom companies, which will be trusted with storing it.

And so far Snowden has been able to do this without experiencing isolation from his friends and family. The final scene of a 2014 documentary about Snowden, "Citizen Four," shows the former contractor in the kitchen of his Moscow apartment with his girlfriend, Lindsay Mills. This fact prompted Glenn Greenwald, a custodian of Snowden's documents and his fiercest defender in the press, to assert his source was able to defy the U.S. government and still "build a happy, healthy and fulfilling life for himself."

That is certainly the hope for Snowden and his many supporters. But with the prospect of a plea bargain diminishing, this hope is really a bet on Vladimir Putin. For two years the Russian president has renewed Snowden's temporary visa to stay in Russia, where he leads a rich digital life. That could continue so long as Snowden remains in Putin's good favor.

http://www.bloombergview.com/articles/2015-08-19/snowden-s-window-for-a-plea-deal-is-closing