As President Obama publicly dithers about whether to grant whistleblower Edward Snowden clemency, the political class that Snowden’s disclosures so humiliated has coalesced around a single talking point:
We believe he should come back, he should be sent back, and he should have his day in court. – White House National Security Adviser Susan Rice
He ought to stand on his own two feet. He ought to make his case… Come home, make the case that somehow there was a higher purpose here. – U.S. Senator Mark Udall (D-Colo.)
What Snowden ought to do is come back and stand trial and face the consequences. And he’ll have his ample opportunity to say why he did what he did and all of that. – U.S. Senator Chuck Schumer (D-NY)
As pure political demagoguery, this line has been wildly successful. For proof just look at a new Pew poll showing that 56 percent of Americans want Snowden to stand trial. With other polls showing a majority think Snowden is a whistleblower and not a traitor, the Pew survey doesn’t mean most think he is guilty. It just means that most people believe, as the talking point goes, he should make his case in court.
On the surface, this notion is compelling and seems almost hard to argue against. From our civics books to our movies and television programs, American culture teaches us that courts are sacrosanct spaces where each side is permitted to freely argue their case, regardless of their power position in society. The talking point about Snowden seeks to tap into that folklore by conjuring an image of the whistleblower being permitted to make his full case and then be judged on that case by a jury of his peers.
There’s just one problem: As the Government Accountability Project’s Jesselyn Radack notes in a new Wall Street Journal op-ed, whistleblowers like Snowden are barred from making their case in court when they stand trial for violations of the Espionage Act:
The Espionage Act effectively hinders a person from defending himself before a jury in an open court, as past examples show. In the case of Mr. Drake, who disclosed massive fraud, waste and abuse in NSA surveillance programs, the government moved to preclude the word “whistleblowing” from trial…Kiriakou, the first CIA officer to tell the media about waterboarding, could not tell the jury about his lack of intent…. And Manning’s salutary motive and intent, for revealing the military gunning down innocent civilians in Iraq as if they were playing “Call of Duty,” was ruled inadmissible until sentencing…
The Espionage Act has morphed into a strict liability law, which means the government does not have to show the defendant had a felonious intent. A defendant cannot argue that the information was improperly classified. First Amendment arguments have failed, largely because they would criminalize the journalism made possible by the ‘leaks.’ The motive and intent of the whistleblower are irrelevant. And there is no whistleblower defense, meaning the public value of the material disclosed does not matter at all.
In an Associated Press report about the prospects of trying Snowden, the whistleblower’s lawyer Ben Wizner of the ACLU cited past precedent to describe how the government could use the Espionage Act to effectively muzzle his client:
‘The Justice Department has successfully barred defendants in leaks prosecutions from mounting any kind of public interest defense by using the Espionage Act,’ Wizner said. He said all the government would have to prove is that Snowden took national defense information and gave it to someone who wasn’t allowed to receive it.
‘The government doesn’t have to prove that the disclosures were harmful to the country. The defendant can’t defend himself on basis that documents shouldn’t have been classified … and lower courts have upheld that,’ Wizner said. ‘That’s why Edward Snowden is not taking his chances in a federal court. He wouldn’t be able to explain himself.’
One takeaway from this is that – shocker! – the Washington establishment promoting the “let him make his case in court” is deliberately deceiving the public. Indeed, in its effort to defend the Obama administration and the national security state, that establishment is making a political opportunity out of the fact that most Americans don’t know the Espionage Act limits defendants’ rights.
Another takeaway: polling itself can be deceptive. Yes, Pew found 56 percent of Americans want Snowden to stand trial. But what would that number look like if Americans were asked a question with more detail? Would the same number of Americans support Snowden (or any other whistleblower) being prosecuted under a law that bars him from mounting a full argument in his own defense? Probably not.
Still another takeaway: In its modern application, the Espionage Act is being used not just to prosecute current whistleblowers, but to intimidate potential future ones. Every individual in the national security apparatus who witnesses waste, fraud, abuse and crimes sees the Obama administration’s high-profile use of the act and now knows that if they blow the whistle, they will not be able to exonerate themselves by pleading a public-interest case in court. Talk about a chilling effect.
Finally, there’s what this all says about the whole structure of the Espionage Act itself. As Trevor Timm, executive director of the Freedom of the Press Foundation, put it in an essay published before Snowden joined his organization’s board:
Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden’s revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.
This is not really about Snowden or any other whistleblower. It is about the right to a fair trial. Whether you loathe Snowden or love him should be immaterial to your view of whether the accused should retain such a right.
You can be on the side of the Obama administration, which has made clear it doesn’t believe the accused have such a right (in its extrajudicial assassinations, it has further made clear that it doesn’t believe people deserve to be even formally accused of a crime before they are summarily executed). Or you can stand on the side of the “due process” principles that are supposed to make sure the justice system is as fair to defendants as the dissembling political class claims it is.