Why Snowden cannot get a fair trial in the US

Many of those angered by Edward Snowden’s disclosures try to imply cowardice in his part and say that in order to prove that he is an honorable man, he should come back to the US, give himself up to the authorities, and allow his case to work its way through the legal system, pointing to Daniel Ellsberg’s example. This is, of course, disingenuous. Ellsberg himself says that things are very different now and that the Obama administration is much worse than Nixon’s in the way it treats whistleblowers and that Snowden did the right thing in leaving the country.

If Snowden returned, he would be very likely seized and kept incommunicado for decades, lucky to get even a rigged military tribunal.

Trevor Timm, executive director of the Freedom of the Press Foundation writes that even under the best conditions, Snowden would not be able to get a fair trial, as statements by the advocates of surrender suggest.

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will 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.

But it is even worse. Benny Johnson provides a round up of the crazed fantasies of some in the intelligence community about how they want to kill Snowden.

If employees of the government are willing to say this, you can only imagine what ordinary gun-toting ‘patriots’, egged on by the inflammatory statements of members of Congress and the administration, will be willing to do. Snowden might as well wear a target on his shirt.


  1. says

    lucky to get even a rigged military tribunal.

    Since he’s a civilian, there would never be a trial. He’d be held for years and probably never even charged (like Jose Padilla)

  2. Mano Singham says

    But couldn’t he be classified as an ‘enemy combatant’ like the others in Guantanamo and subject to a military tribunal?

  3. says

    I almost think that the Obama administration would prefer Snowden stay in Russia. As long as he stays there, Obama and the NSA gets to treat him as an enemy, a traitor, and a coward. They don’t need to worry about more public displays of retribution. We can say that the administration would “likely” deny him a fair trial. We can say they would “likely” torture or abuse him. But they aren’t doing those things, and as long as Snowden stays in Russia, they get to say they won’t and that they never would. As soon as Snowden tried to return, they’d need to pick a path: uphold the constitution and risk Snowden’s acquittal or admit to being a lawless regime when it comes to “National Security.”

    The only thing the administration has to gain by his return is preventing him from releasing any more information. But, of course, he’s already shared that information with others for just such a reason. So the administration has nothing to gain but plenty to lose.

    I want Snowden to come back, but only because he should never have needed to leave. He was a traitor to the US the way the cop who cited me for speeding was. Wait… I like this angle. Snowden is a traitor. Yeah. Tattle tailing is treason! Snowden and Officer Malone are treasonous dogs!

Leave a Reply

Your email address will not be published. Required fields are marked *