Eric Holder: U.S. will not seek death penalty for NSA leaker Edward Snowden

According to a letter from Attorney General Eric H. Holder Jr., the United States will not seek the death penalty for Edward Snowden, the former National Security Agency contractor who provided journalists with secret documents describing U.S. digital surveillance operations:

In a bid to prevent Snowden from being granted asylum by Russia, Holder wrote a letter to the Russian justice minister, saying that while Snowden has been charged with theft and espionage he would not face the death penalty if returned to the United States.

“The charges he faces do not carry that possibility, and the United States would not seek the death penalty even if Mr. Snowden were charged with additional death penalty-eligible crimes,” Holder wrote to Justice Minister Alexander Vladimirovich Konovalov.

The letter was dated Tuesday and released by the Justice Department on Friday.

Holder also told Konovalov that Snowden would not be tortured if he returned to the United States and would be tried in a civilian rather than a military court, with the full protection of U.S. law. Snowden has suggested in press reports that he could be tortured or face the death penalty if returned home.

“Torture is unlawful in the United States,” Holder wrote. “If he returns to the United States, Mr. Snowden would promptly be brought before a civilian court convened under Article III of the United States Constitution and supervised by a United States District Judge . . . Mr. Snowden would be appointed (or if so chose, could retain) counsel.”

The release of Holder’s letter came on a day when Russian officials seemed simultaneously unenthusiastic to have Snowden on their soil but also unwilling to extradite him to the United States.

“We have never surrendered anyone and we will never do so in the future,” Kremlin spokesman Dmitry Peskov said on Friday, Interfax reported.

But Peskov also said that Russian President Vladimir Putin did not want the Snowden drama to harm U.S.-Russian relations. Putin “has demonstrated strong resolve to prevent this,” Peskov said.

The head of the public council of the Russian Federal Migration Service, Vladimir Volokh, said Friday that Snowden could be stuck in the transit area of Moscow’s Sheremetyevo Airport “for up to six months” as officials review his legal situation, Interfax reported.

Sari Horwitz and Michael Birnbaum

Earlier Friday, Snowden’s father Lon appeared on NBC’s “Today” show to talk about his son’s case:

Snowden vehemently defended his son’s actions, and said he was “an angry American citizen,” and that the American people ”don’t know the full truth, but the full truth is coming.” Snowden also explained that Edward is sharing the truth and doing what is right.

“He did what he knew was right. He shared the truth with the American people. What we choose to do with it is up to us as a people,” he explained.

Snowden has done several interviews now with news media defending his son and talking about the case.

Also on Friday, Snowden’s lawyer Fein released a letter he sent to President Obama urging him to order the attorney general to dismiss the criminal complaint against Edward Snowden and to support legislation to rein in the NSA surveillance program.

“We also find reprehensible your administration’s Espionage Act prosecution of

Edward for disclosures indistinguishable from those which routinely find their way into the

public domain via your high level appointees for partisan political advantage,” Fein wrote, referring to drone protocols leaked to the New York Times.

Masuma Ahuja

Another espionage case, the trial of Bradley Manning, is nearing a conclusion. Manning provided reams of classified documents and diplomatic cables to WikiLeaks, and his case has potentially important consequences for Snowden if he is ever prosecuted:

Can a government employee be convicted of espionage for leaking classified information to the media? The Obama administration has charged at least seven individuals with violations of the Espionage Act, but so far none of those cases have been ruled on by a judge or jury. . . .

The 25-year-old [Manning] is the fifth person to be charged by the Obama administration under the Espionage Act, a 96-year-old statute. It’s this law that President Obama’s been using to accuse civilian leakers of betraying the state. But while it’s been used many times before in complaints, none of these cases have reached the legal merits.

That’s because previous trials involving the Act have always been resolved in other ways. For example, in the case of Thomas Drake, who leaked information about NSA spending, the government’s case fell apart. Some leakers have gone to jail, but that has been the result of plea bargains, not a conviction by a judge or jury. For example, espionage charges against John Kiriakou, the CIA employee who leaked details of the agency’s waterboarding practices, were dropped after he agreed to plead guilty to violating the Intelligence Identities Protection Act.

It’s unlikely Manning would be altogether acquitted of his espionage charges, since he already pleaded guilty to a watered-down version of them earlier this year. (This process, known as pleading guilty by exceptions and substitutions, means Manning acknowledged some responsibility without directly answering the specific charges brought against him by the government.) If it did happen, however, it would be a major blow to the White House, which has already invoked the Espionage Act twice since Manning.

Brian Fung

Meanwhile, the information Snowden made public about technology firms’ cooperation with government surveillance programs has apparently begun to hurt business:

Computer World UK reports a recent Cloud Security Alliance (CSA) survey found 10 percent of 207 officials at non-U.S. companies canceled contracts with U.S. providers after the leaks, and 56 percent of non-U.S. respondents are now hesitant to work with U.S.-based cloud operators.

This is bad news for U.S. tech companies because cloud computing and storage is a huge, expanding market. Research firm Gartner forecasts the public cloud services market will grow 18.5 percent in 2013 to a total of $131 billion worldwide.

Naturally, European cloud service providers were quick to recognize the opportunity represented by the leaks. Shortly after the news broke in June, Robert Jenkins, CEO at Swiss company CloudSigma, told IDG News Service the leaks would be “really damaging for U.S. companies in terms of competing abroad” while Johan Christenson, CEO of City Network from Sweden, noted ”[t]here are a lot of customers that come to us because they want to store their data in Sweden.”

European government officials also hopped on the bandwagon, with German Interior Minister Hans-Peter Friedrich telling reporters “whoever fears their communication is being intercepted in any way should use services that don’t go through American servers” earlier this month.

Even before the NSA leaks, some international consumers were wary of U.S. cloud service providers based on what was known about the U.S. government’s authority under the Patriot Act. At the Office 365 launch during the summer of 2011 Microsoft admitted E.U.-based cloud data hosted by the company was subject to the Patriot Act because the company functioned under U.S. law. The European Parliament noted these concerns in an October 2012 report about protecting privacy in the cloud.

Andrea Peterson

Earlier this week, a vote in the House on a proposal to restrict the NSA’s operations revealed divisions in both parties over Snowden’s disclosures. Read more about the vote here .

Max Ehrenfreund is a blogger on the Financial desk and writes for Know More and Wonkblog.
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