What's Next For NSA Leaker Edward Snowden?

Melissa Block talks to Washington attorney David Laufman, who prosecuted national security cases during the George W. Bush administration. He talks about the complications of prosecuting a case that involves extradition requests and classified materials.

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MELISSA BLOCK, HOST:

The Justice Department says it's in the initial stages of building its case against the man who admitted to leaking top-secret documents, Edward Snowden. He said in a video posted on The Guardian's website that he fully understood the risks in coming forward.

(SOUNDBITE OF VIDEO)

EDWARD SNOWDEN: If you realize that that's the world that you helped create and it's going to get worse with the next generation and the next generation, who extend the capabilities of this sort of architecture of oppression, you realize that you might be willing to accept any risk, and it doesn't matter what the outcome is.

BLOCK: So what might happen to Edward Snowden from here? I talked about that today with former federal prosecutor David Laufman. He prosecuted national security cases during the George W. Bush administration. He says the Justice Department is engaged in a dragnet of investigations.

DAVID LAUFMAN: Well, I think they probably by now had federal magistrates approve search warrants, say, for email accounts, telephone records, other business records. They've probably conducted physical searches of his residences. I'm sure they're talking to many, many witnesses, employees and colleagues at Booz Allen to try to build, you know, a portrait of this guy forensically and through witness testimony.

BLOCK: And in terms of the forensics, how would they go about tracking documents that he may have downloaded and how he might have passed them along?

LAUFMAN: Well, so they're going to want to identify all computer systems that he has had access to during the period when he might have had access to the classified information. There's all sorts of digital footprints that someone accessing a computer leaves that can be of investigative use.

BLOCK: One notion that's been raised by law enforcement sources to NPR reporters is that Edward Snowden might be a front for a foreign government or a group. In other words, do we take at face value what he says he did, that he was acting on his own volition and on his own behalf?

LAUFMAN: Well, the U.S. government can't simply rely on his claim that he is the leaker and he did this. They have to conduct an actual investigation to substantiate his claim.

Whether he did, in fact, access these materials, whether he did, in fact, disclose them, whether anybody else was involved, his motives for doing it are of secondary importance, except with respect to how the government might try the case if the case were to go to trial, where they'll have to take into account factors such as the jury appeal of the case and how to try to diffuse efforts that he or his attorney might make to turn this into political theater.

BLOCK: I want to get to that in a minute, but, first, there's this question. Edward Snowden is - or at least was - in Hong Kong. To get him extradited to face charges here in the U.S., what would have to happen? What does the U.S. government need to do?

LAUFMAN: Well, what prosecutors are going to have to do with the Department of Justice is examine the extradition treaty between Hong Kong and the United States. The treaty specifies certain offenses that expressly come within its scope that Hong Kong would understand and agree that it's obligated to extradite him for.

There's nothing listed in the extradition treaty between Hong Kong and the United States that relates to espionage or the disclosure of classified information of the requesting country, the country in the position of the United States.

BLOCK: Mm-hmm, there's not.

LAUFMAN: It's by no means clear that Hong Kong would view itself as having any obligation to extradite him if he were simply charged in the United States with disclosing classified information.

There is something listed in the extradition treaty denominated as computer crimes, without much explanation. And it is possible that he could be charged in the United States, among other things, with a criminal offense for exceeding his authorized use of a computer system involving classified material. And that might provide traction for the Department of Justice to go to the government of Hong Kong and seek his extradition.

BLOCK: In this case, as the government prepares to bring charges, they also have to be thinking that at this point, Edward Snowden, we think, is in Hong Kong, but we're not sure. I mean, there must be a timetable calculation they have to be thinking about here as well.

LAUFMAN: Well, I think there probably is. I think their timetable calculation is, you know, how long is he going to stay in Hong Kong? If he goes elsewhere - like Sweden, for example, which takes a dimmer view of cooperating with the United States in espionage-related cases, the Department of Justice may have fewer options on the table. So there may be a perceived need for speed to develop a charge to prosecute him under that is within the scope of the U.S.-Hong Kong extradition treaty.

BLOCK: You know, I've been trying to think about any parallel cases that we might draw some lessons from, and there was the case of the leak about the Bush administration's warrantless wiretapping program, apparently leaked to reporters from The New York Times by Justice Department attorney Thomas Tamm. The Justice Department dropped the investigation. Tamm was never charged in that case. Do you see a parallel there?

LAUFMAN: Well, I'd have to know more about the reasons why the Department of Justice dismissed the case. Cases involving the disclosure of classified information present unique challenges to prosecutors. The very proof of the offense sometimes requires the government to disclose classified information, sometimes additional classified information to establish the core facts it has to prove that the information at issue was, in fact, classified.

You know, presenting that kind of proof in an open public trial, which the Constitution requires, is challenging. There is a federal statute known as the Classified Information Procedures Act that provides a procedural playbook for the handling of classified information in federal criminal proceedings. But there are risks to the government in bringing these prosecutions, and that's the trade-off in going after leakers, that the price of success may come at the expense of protecting additional government secrets.

BLOCK: David Laufman, thanks so much for coming in.

LAUFMAN: Thank you, Melissa.

BLOCK: David Laufman is a former federal prosecutor who handled national security cases. He's now a lawyer in private practice here in Washington.

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