I’ve heard a lot of people, including some of the alleged liberals in Congress (I’m looking at you, Mark Udall) make the argument that if Edward Snowden really thinks he was a legitimate whistleblower, he should return to the United States to stand trial and make the argument that what he did was in the common good. But as Trevor Timm points out, it’s an argument he wouldn’t even be allowed to make.
If Edward Snowden comes back to the US to face trial, it is likely hewill not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.
This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.
In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)
The same scenario just played out in the Chelsea Manning trial this summer. Manning’s defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed he caused no real damage to U.S. interests. All this information was ruled inadmissibleuntil sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.
Hell no, I wouldn’t come back if I were him. I’d stay on the run as long as I could and hope they don’t track me down and kill me.