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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

(Page 2)

Even if Snowden’s judge excluded evidence of motive during the trial and Snowden chose not to take the stand, the Justice Department would still have to prove in open court exactly what NSA surveillance files and computer programs Snowden pilfered and disclosed. Commentators on all the major networks would wax late into the night parsing each day’s revelations, debating the lawfulness and necessity of the NSA’s operations as never before, invoking the negative findings of two executive-branch review panels and re-examining the legal opinion written in December by U.S. District Judge Richard Leon, who concluded that the NSA’s dragnet collection of telephone metadata was tactically ineffective and almost certainly unconstitutional.

Every day the trial continued, the prosecution also would have to contend with the possibility Snowden supporters somewhere in the world would release new NSA documents, deploying a pressure tactic that some observers have dubbed “graymail.” And at sentencing, as he exercised his right of “allocution,” we finally would get to hear from Snowden himself, not on the issue of guilt or innocence but on the question of punishment to explain why he deserves leniency and should not be sent to prison for standing up to the surveillance state.

For the administration, this is a nightmare scenario. Rather than jailing Snowden, a far better resolution—one reportedly under review within the NSA and fully endorsed by the editorial board of The New York Times—would be some form of amnesty or clemency, consistent with the president’s pardon power under Article II, Section II of the Constitution.

To date, of course, the president has been extremely stingy with pardons, prompting some pundits to quip that a Thanksgiving turkey is more likely to receive forgiveness from Obama than a deserving criminal defendant. Since assuming office in 2008, Obama has granted a mere 61 acts of clemency and pardon, compared with 200 dispensed by George W. Bush and 450 issued by Bill Clinton.

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But with the recent announcement that Russia intends to extend Snowden’s asylum status, the chances are good that come next Thanksgiving Snowden will still be in Moscow rather than on a plane back to Washington. Between now and then, Obama could spare himself the embarrassment of the century and simply do the right thing by taking the threat of prison for Snowden off the table. What happens thereafter—whether a full-blown amnesty or some kind of plea bargain is offered—should be the only remaining item on the legal agenda.


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