Edward Snowden Mural

Almost from the June day Edward Snowden outed himself as the source of the NSA revelations, prominent voices have called for his return to the U. S. to submit to due process of law. From those who are critical of the revelations, who deny that he is a whistleblower and refuse to compare him to Daniel Ellsberg, there is a fairly consistent refrain: “If only Snowden would return and submit to the legal process, he could tell his side of the story in court.” Administration officials, Congress members, NSA officials and their spokespeople, and even President Obama all have declared that he should turn himself in.

National Security Advisor Susan Rice has stated, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell has made similar statements. Rep. Mike Rogers (Chairman of the House Intelligence Committee) said he’d pay for a return ticket for Snowden (and lied about NSA Programs and asserted Snowden offered to sell information). Colorado Senator Mark Udall (an advocate for NSA reform) proclaimed that “[Snowden] ought to stand on his own two feet…Make the case that somehow there was a higher purpose here.” According to the New York Times (my bold),

[Senator Chuck Schumer] said it was unclear how much the broad metadata gleaned by the National Security Agency had helped the fight against terrorists; how much damage Mr. Snowden had, in fact, done to intelligence efforts; and precisely how the data were used.

All of this could come out in a trial; it would be beneficial for the country to have the discussion,’ Mr. Schumer said. ‘So, running away, being helped by Russia and China, is not in the tradition of a true civil disobedience practitioner.’

Schumer and the others calling for Snowden’s return are either uninformed or they are deliberately “misrepresenting” the truth.

Would Snowden even be able to tell his side of the story in court? In recent cases, prosecutors have convinced courts that neither the intent of the leaker, the value of leaks to the public, nor the lack of harm caused by the leaks are relevant, so they are inadmissible at a trial. If previous Espionage Act cases against leakers are any indication, a jury would not be allowed to hear that information. It is highly likely that what Edward Snowden could present to a jury in defense and justification of his actions would be extremely limited.

Glenn Greenwald made it clear in his CNN discussion with Ruth Marcus (video below) what Snowden would face if he stood trial.

Under the Espionage Act, you’re not allowed to come into court and say, ‘I was justified in disclosing this information.’ There is no whistleblower exception in the Espionage Act.

Greenwald said that if Snowden should return to the United States, he would have no protections under the Espionage Act, and would not be allowed to justify his actions in court. There would be no guarantee that he would be allowed to tell a jury why he believed his violations could be in the country’s national interests. Whether jurors would be allowed to hear Snowden even mention his claim of a higher purpose for his actions is unknown.

The Freedom of the Press Foundation says it better than I can.

Americans 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. 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.

Image by squirrel83, licensed under the Creative Commons Attribution 2.0 Generic license.