I recently wrote that Edward Snowden should return to the US and face trial for his revelations about NSA surveillance. (“Snowden Go Home”). The longer Snowden is a fugitive (particularly in Vladimir Putin’s Russia), the harder it is to characterize his conduct–obtaining and disclosing classified records by the gigabyte–as an act of conscience. In the venerable tradition of civil disobedience, he should submit to American legal processes.
Not surprisingly, these views triggered some critical comments. Several said that Snowden’s actions were the same, morally speaking, as Daniel Ellsberg’s leaking of the Pentagon Papers, the classified government history of US involvement in Vietnam, whose publication by the NY Times, the Washington Post and others in 1971 was seen as a first amendment cause celebre.
And so it was a first amendment cause celebre–but with some differences. The multi-volume Pentagon Papers were highly classified because of sensitive cables and communications intercepts, all confined to just one of the volumes. Ellsberg, however, never gave that volume to the press. As he explained to me at a First Amendment Coalition conference in Berkeley several years ago, Ellsberg wanted to tell the country about US deception in the Vietnam War, but do so without compromising US intelligence “sources and methods.”
The same cannot be said of Snowden. His very objective was to compromise intelligence sources and methods—specifically, sources and methods that he viewed as illegal and incompatible with a free and democratic society. Another difference, of course, is that Ellsberg did stand trial (although, fortuitously, the prosecution was aborted due to misconduct by the Nixon administration).
Other readers of my column took issue with my assertion that Snowden, if he surrenders to US authorities, would receive a fair trial. Several people noted, in particular, Snowden’s complaint, which he made in recent interviews, that the Justice Department has refused to give assurances that he will be permitted to present a “public interest” defense at trial.
True enough, Snowden won’t be allowed to contend that the public benefit from his leaks of classified information outweighed any harms to US security interests–and that he must be acquitted on that basis. Federal courts in other recent prosecutions of national security leaks have blocked such arguments. Nonetheless, good defense lawyers–and Snowden will be able to choose the very best (regardless of cost)–would, in my opinion, be able to make similar arguments, albeit indirectly.
Snowden has been indicted under 18 USC 793(d), which requires proof that a defendant “has reason to believe” that the classified information he leaked “could be used to the injury of the United States or to the advantage of any foreign nation . . .” At trial his lawyers could argue that Snowden did not have the requisite “reason to believe” that his leaks would or could harm US interests. Why? Because, they would argue, Snowden anticipated the Congressional and public demands to curb NSA surveillance; he was confident that the resulting reforms would strengthen, not weaken, US national security; and time has proven him right.
Snowden is using whatever leverage he has to negotiate with the Justice Department. That is understandable. When all is said and done, however, he is unlikely to obtain assurances–about procedures at trial, his status while awaiting trial, and other matters— that will be remotely satisfactory to him. What then? Will he continue to be justified, morally if not legally, in remaining a fugitive under Russia’s protection?
I don’t think so.
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Peter Scheer is FAC’s executive director. The views expressed here do not necessarily reflect the views of FAC’s Board of Directors.
One Comment
You think that the US court system will afford a fair trial in a political case. I think that Snowden would be nuts to think so.
Lots of people in the old days fled from Communist regimes, and they had more sense than to think they would get a fair trial if they went back. So they didn’t. They made a new life for themselves, and that’s what Snowden needs to do. He is getting his three-year residence permit in Russia, and he would be wise to take it and become in due time a Russian citizen, just as others became US citizens who fled to the US in bygone days.
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