Negotiating Around a Bad BATNA

Edward Snowden found the U.S. government to be a reluctant negotiating counterpart and needed a BATNA

By — on / BATNA


Don’t assume your public statements will win over a reluctant negotiator.  Take the example of Edward Snowden back in 2016, the controversial whistleblower who leaked documents about the National Security Agency’s mass surveillance program, tried to negotiate with the U.S. federal government regarding his three felony charges. Snowden, who has been in exile in Moscow for several years, says he misses his family and life in the United States. So far, his efforts to negotiate the terms of his return to the States haven’t worked.

“I’ve volunteered to go to prison . . . many times,” said Snowden during a BBC interview last fall. “So far, they’ve said they won’t torture me, which is a start, I think, but we haven’t gotten much further than that.”

BATNA Basics

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Discover how to unleash your power at the bargaining table in this free special report, BATNA Basics: Boost Your Power at the Bargaining Table, from Harvard Law School.

How to Improve Your Best Alternative to a Negotiated Agreement (BATNA)

In negotiation, a key challenge is to try to improve your BATNA, or best alternative to a negotiated agreement. When you’re armed with a strong BATNA, you feel comfortable walking away from a deal that doesn’t meet your interests. The role of BATNA in negotiation is critical, as a strong BATNA can bring significant leverage. In fact, many negotiation experts consider your BATNA to be the most important among your sources of negotiating power.

Clearly, Snowden has a weak BATNA in his would-be negotiations with the U.S. government. Other governments have refused to take him in, and his current BATNA appears to be living in Moscow. Though he has said that he has a comfortable and safe life in Moscow, he has also expressed eagerness to return home.

In negotiation analysis, it is important to assess not only your own BATNA but the relative strength of your counterpart’s BATNA. If your counterpart has few good options to deal with you, he may feel compelled to stay at the table and compromise. But if he doesn’t need to negotiate with you, you are unlikely to gain much headway.

At this time, the U.S. government has no obvious incentives to negotiate with Snowden. Public opinion is largely against him, and the White House likely would be widely condemned for appearing to be “soft” on a man many consider to be guilty of treason.

With no apparent negotiations going on behind the scenes, Snowden and his representatives have shared his negotiating stance in the media. One of his legal advisers, Ben Wizner, told the Christian Science Monitor that Snowden would not accept “felony convictions with the loss of civil rights” for his actions and would reject a long prison sentence that would potentially deter other government whistleblowers. But “that doesn’t mean he categorically has ruled out some jail time,” Wizner confirmed.

Another Snowden adviser, Jesselyn Radack, has said her client would accept a plea deal similar to that received by former General David Petraeus, who shared classified data with his lover. Petraeus accepted a $40,000 fine and two years’ probation after pleading guilty to a misdemeanor.

But Snowden lacks Washington connections and, unlike Petraeus, he deliberately aimed to capture public attention with his leaks. He seems unlikely to secure such a light sentence. Ex-soldier Chelsea Manning received a 35-year prison sentence for sharing classified documents with WikiLeaks.

In July 2016, saying that Snowden had opened up important debates about national security and privacy rights, former Attorney General Eric Holder told Yahoo! News that he thought the Justice Department was open to negotiating a deal with Snowden. However, Holder’s successor, Loretta Lynch, refused to confirm such speculation, and former NSA director Michael Hayden told the BBC that he believes Snowden will live out his life in Moscow.

For now, Snowden remains trapped in a holding pattern. The case serves as a reminder that despite your best negotiation tactics, sometimes the only factor that can overcome a bad BATNA that leads to the impasse is the passage of time. With time, Snowden’s notoriety may fade, and public opinion toward him may soften. Conceivably, there could come a day when a U.S. president decides to grant Snowden the possibility of negotiating prison time. Until then, Snowden may remain in the position he is in today, negotiating through the media in an attempt to capture the attention to a silent and hostile counterpart.

Have you ever overcome a bad BATNA? Share your story in the comments.

In review, Snowden’s situation reminds us of several key negotiating lessons:

  • Do what you can to improve your best alternative to a negotiated agreement. Unlike Edward Snowden, we typically have ways of enhancing our situation, such as identifying a different negotiating partner and pursuing negotiations with them.
  • Analyze your counterpart’s BATNA, which will help you determine how open they will be to negotiating with you and making concessions.
BATNA Basics

Claim your FREE copy: BATNA Basics

Discover how to unleash your power at the bargaining table in this free special report, BATNA Basics: Boost Your Power at the Bargaining Table, from Harvard Law School.

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