By Julian Hattem
Edward Snowden is claiming victory this week, after President Obama signed legislation that significantly curbs federal surveillance powers for the first time in a generation.
But the world’s most famous American leaker is still stuck in Russia, with the U.S. having revoked his passport and indicted him on espionage charges that would likely lead to a lengthy prison sentence, should he step back on American soil.
Snowden is the subject of an Oscar-winning documentary and credited with spurring the surveillance reform push on Capitol Hill, but has also been denounced as a traitor, and the ethics of his actions remain the subject of fierce debate.“I have lost a lot of things,” Snowden said via videoconference at an Amnesty International event this week. “I can no longer see my family, I can no longer live in my home.”
“But on the other hand, the things that I have received personally and that we have all benefitted from publicly make it all worth it,” he added.
It was two years ago Friday that Snowden’s first leak made its way into the pages of The Guardian, showing that the National Security Agency (NSA) had received permission from a secretive federal court to collect data about millions of Verizon customers’ phone calls without a warrant.
The firestorm from the leaks culminated in President Obama’s signature on the USA Freedom Act, which ends the NSA program and makes other reforms to the government’s surveillance and secret legal operation.
While the passage of the USA Freedom Act would have been unlikely without Snowden, he remains one of the most divisive figures in public life.
Snowden is “a traitor to the United States,” Senate Intelligence Committee Chairman Richard Burr (R-N.C.) said in heated floor remarks as the bill headed towards a 67-32 vote on Tuesday.
“Snowden put the lives of Americans and foreigners at risk,” he added.
Two years ago this weekend, Snowden was sitting with three journalists in a cramped hotel room in Hong Kong, in scenes captured in Laura Poitras’s Academy Award-winning documentary “Citizenfour.”
Shortly after that, he fled to Moscow, where a nearly six-week stay in Sheremetyevo Airport turned into nearly two years of temporary asylum.
Snowden has repeatedly expressed a desire to come home, but criminal prosecution awaits him.
The Obama administration has charged Snowden with three felonies, including two under the 1917 Espionage Act, which could place him in jail for years.
“The fact is that Mr. Snowden committed very serious crimes, and the U.S. government and Department of Justice believe that he should face them,” White House press secretary Josh Earnest said this week.
“We believe that Mr. Snowden should return to the United States where he will face due process, and he’ll have the opportunity — if he returned to the United States — to make that case in a court of law,” Earnest added.
For now, his return seems incredibly unlikely.
While lawyers for Snowden were in negotiations with Justice Department officials for some type of leniency last year, those talks appear to have broken down.
"As time goes on, the utility for us of having that conversation becomes less," NSA Deputy Director Richard Ledgett said last summer at the Aspen Security Forum, shortly after the one-year anniversary of Snowden’s leaks. "As time goes on, his information becomes less useful."
Ben Wizner, Snowden’s lead lawyer with the American Civil Liberties Union, declined to discuss possible negotiations with the Obama administration, but appeared less pessimistic about Snowden’s future.
“I don’t believe that he’s going to spend the remainder of his years in exile from his country,” Wizner said on Friday. “Because history is much kinder to whistleblowers than it is to exaggerated claims of national security.”
There’s a “non-zero chance” that the calculus would change at some point to make a deal possible, suggested Stephen Vladeck, a law professor at American University.
“Both sides would have to come off of their current position, which is why I don’t have any reason to think this will happen any time soon,” he said. "But I could see a story where at some point in the future it’s actually in everyone’s interest to put this chapter — as much as we can — behind us.”
The Obama administration — or perhaps a future administration — might value the symbolic closure of getting Snowden to admit to breaking the law, Vladeck said. Snowden, for his part, might find himself in increasingly less favorable circumstances in Russia.
Still, the NSA leaker and his allies have insisted he won’t return if a jail cell is his destination.
The espionage charges placed on Snowden make it likely that he would not be able to publicly give his side of the story in court.
Supporters of Snowden point to Chelsea Manning — another leaker who gave documents to Wikileaks and is now serving a 35-year prison sentence — as evidence of the kind of treatment he would receive, were he to come back without a deal.
A lengthy prison sentence would be all the more unjust, Snowden allies say, since former CIA Director David Petraeus was given a mere slap on the wrist for giving classified information to his mistress and biographer, Paula Broadwell. In April, Petraeus was sentenced to two years of probation and a $100,000 fine.
“In the context of laws that are very broad, the power to selectively prosecute those that expose things that are critical of the administration’s behavior, while not prosecuting — or prosecuting for a very limited offense — those who leak in a way that supports the administration ... is an abuse of power itself,” said Yochai Benkler, a professor at Harvard Law School and co-director of the Berkman Center for Internet and Society.
The fact that Snowden remains a fugitive after spurring changes in the law “says more about us and our system than about him,” Benkler added.
It’s “a profoundly distorted view of American democracy,” he said.