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Bringing Edward Snowden to Trial Could Be the Embarrassment of the Century

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Posted on Jan 27, 2014

By Bill Blum

nolifebeforecoffee (CC-BY)

There’s little doubt that if the Obama administration ever managed to bring NSA whistle-blower Edward Snowden before a jury on American soil, the unfolding drama would quickly become the trial of the new century.

But despite all of its bluster, is the administration really eager and ready for such an undertaking? The answer, surprisingly, may be “no,” and for one simple reason—the trial of the century could also quickly devolve into the embarrassment of the century.

To be sure, from a technical standpoint, the Justice Department has a very strong case. Snowden has been charged with three very serious federal felonies carrying a potential combined 30 year prison sentence: one count of theft of government property and two violations of the 1917 Espionage Act for transmitting classified defense and intelligence information about NSA spying to journalists Glenn Greenwald, then of The Guardian newspaper, Barton Gellman of The Washington Post and Laura Poitras.

According to many legal experts, including Greenwald, Snowden’s motives for leaking secret documents and computer files are legally irrelevant under the Espionage Act, to which formal whistle-blower protections don’t apply. As in the 2012 prosecution of former CIA analyst John Kiriakou for disclosing classified information to the press about the waterboarding of al-Qaida prisoners and last year’s Chelsea Manning court-martial, Snowden’s judge may exclude such evidence from his trial. As a result, Snowden’s jury may never get to consider what would otherwise be his central defense—that he acted not to aid the nation’s enemies but to expose government wrongs and protect our constitutional rights.

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Ordinarily, when the odds are so strongly stacked in their favor, prosecutors smell blood in the water and aim for maximum punishment. But last week, Attorney General Eric Holder, the country’s top prosecutor, held out the possibility of engaging in plea negotiations with Snowden should the fugitive return, albeit still insisting that Snowden “broke the law … caused harm to our national security and has to be held accountable for his actions.”

Unlike the Manning trial, which took place in a cloistered military base, or the prosecution of Kiriakou and other Obama-era whistle-blowers, which received little day-to-day press attention, a Snowden trial would be a unique 24/7 news sensation, even if live cameras were barred from the courtroom and spectators were excluded from some hearings involving as-yet undisclosed classified material. 

As the administration well knows, we live in a media-driven culture fascinated by the lurid details of big-stakes criminal prosecutions and political scandals—witness the sky-high TV ratings achieved by the HLN cable network for its broadcast of the Jodi Arias murder trial in Arizona and the current saturation coverage of New Jersey Gov. Chris Christie’s “bridge-gate” debacle. As a pure media circus, the prosecution of Snowden would far eclipse them all, attaining the status of a national obsession in the fashion of the O.J. Simpson case in the mid-’90s. 

But it’s not just the circus atmosphere of a Snowden trial that the administration would want to avoid and that, I suspect, has Holder talking about plea negotiations. It’s what the trial and the circus would reveal about the overreach of the modern American surveillance state and the injustice of prosecuting the man credited by so many with bringing that overreach to light.


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