Edward Snowden has done Americans a great public service by telling us how the National Security Agency has been collecting the private information of millions of innocent people in secret. Because of his revelations, an influential federal appeals court recently ruled suspicionless mass surveillance in the United States was illegal, and this week, Congress passed historic NSA reform, reining in the spy agency for the first time in over 40 years.
Still, some say that if Snowden is really a whistleblower, he should come back and tell his story in a court and let a jury decide. Anyone who says this has a fundamental misunderstanding about how leak trials work.
Snowden would face charges under the Espionage Act, a draconian World War I-era statute that was originally written to go after people who sell U.S. secrets to foreign governments for profit — not people who give the American people information in the public interest for free.
The Espionage Act is crafted in a way that would bar Snowden from making a whistleblower or public interest defense. Surely, most people would agree a fair trial for Snowden would include his ability to tell a jury about his motive — that he wanted to inform the public about how the government was lying to them and violated the letter and spirit of the Constitution. Under the Espionage Act, his motive would be ruled inadmissible by the judge; the jury would never hear it.
The prosecutors would also not have to prove his leaks damaged national security. So though we know the government has greatly exaggerated the ‘national security’ harms that have come from Snowden’s revelations, the jury would not know that. The jury also would be barred from hearing about all the benefits. Information about the court rulings, congressional reform, the changes in public opinion about privacy, and tech companies improving our security in response to Snowden would all be inadmissible too.
Snowden’s lawyers could not bring up any of this until after he is convicted of felonies that carry life in jail. He could then ask for leniency, but as Chelsea Manning, another whistleblower, found out, that doesn’t mean he won’t get an incredibly harsh sentence: a military judge gave her 35 years in prison.
Snowden has said he would come back if he could get a fair trial that included his ability to tell the jury the whole truth about the last two years. So far, the Justice Department has refused to budge.
Trevor Timm is the executive director of Freedom of the Press Foundation. Edward Snowden joined FPF’s board of directors in February 2014.