If Snowden returned to US for trial, could court admit any NSA leak evidence?


Image: Reuters

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

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. 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 inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they've led to an unprecedented review of government secrecy. He wouldn't be able to talk about the sea change in the public's perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

Notable Replies

  1. If the NSA believes its activities are legal, why doesn't it open them to public investigation?

  2. The problem is there should be no compromise on the Constitution, and the only way for officials to have a prayer they will ever be able to forge such a "compromise" is to keep it all secret. That's because divulging anything, even the tiniest details, reveals how illegal their entire way of life is.

  3. Rindan says:

    They didn't wire tap, they just tracked who you talk to, when you talked to them, for how long, and where both of you were standing when you had that conversation. This is a hilarious argument.

    Clearly, the NSA thought that everyone would agree it is illegal. There is no magic in tracking every single call in the US. This isn't some awesome capability that only the technological might of the NSA can do. You could send that data to me, and I could setup a server to hold all of that data with well under a million dollars, and I could even start spitting out social graphs for you with boring software that costs under a thousand dollars.

    So why make this program secret? If everyone agrees it is legal and we all understand the technology required is trivial, why hide it?

    The simple answer is that it seemed pretty fucking clear to everyone that it was in fact illegal. The only secret capability that having this operation classified was the secret capacity for the NSA to piss on the constitution. Until this, perhaps some of America's enemies might have (delusionally) thought that the NSA was bound by law and wouldn't take illegal actions. Now everyone knows better. The fact that the NSA will do things that appear to be utterly illegal has been declassified.

    We now know that the NSA is above the law. It will break into private American companies to steal internal data. We know that the NSA will track fucking anything they can get their hands on and then blatantly lie to congress about it. We know that the NSA will pay off corporations to intentionally cripple public encryption.

    Truly, the only secret Snowden has revealed is that the NSA is not bound by law. When wondering what the NSA is up to, just pretend that they get to ignore the constitution and law. If they have the technological capability to do it, they have.

  4. Rindan says:

    Nope... I am just someone that works with massive datasets. All calls in the US in a day is probably a few billion entries (300 million people * however many calls you think the average person makes in a day). You could slap that into few text files and my work computer could eat that and spit out useful information with software already on it. The data would probably be under a terabyte. Processing all calls in the US for weeks or months would take more than my little work computer, and you would need a proper database and servers to store it all, but it isn't some marvelous technical challenge. You could buy the entire setup off the shelf with tech support for well under a million. This is boringly standard equipment and the dataset in question is normal business sized data, and a mere a spec of dust compared to what Google or Amazon does every minute.

    Google doesn't keep secret that they have an algorithm and that it works roughly in a particular way. Coke doesn't keep secret that it makes soda or that it has so many calories. No one is asking the NSA to open source their spying algorithms. Knowing that the NSA collects the phone records of every American isn't giving away anything at all other than that they are doing something that everyone thought they were not doing because everyone thought it was fucking illegal. The "secret sauce" of the domestic spying on all Americans isn't the fact that they can do it, the technical act is trivial and can be done with off the shelf hardware and software, it is the fact that they are doing it despite everyone thinking it was illegal.

    No one would be shocked to learn that the CIA has spy satellites. We know they have them because they are legally allowed to have them. The CIA doesn't tell us where they are or who they are looking at. We are okay with this because we, as a democracy, handed them that power and are okay with the implications. No one gave the fucking NSA the power conduct massive domestic spying, which is why everyone is suddenly shocked and pissed.

    Why does the secret court that doesn't fucking have an adversarial process with two god damn sides keep upholding up this shit? Because it isn't a real court by any fucking definition of the word. Even the fucking Soviets kangaroo courts made the pretense of having two sides before giving the accused a "fair" trial before their already arranged execution.

    Do you know how many national security letters that FISA court has reject? Zero. Not a single fucking request has ever been denied. In courts all around the US on the other hand real judges reject warrants all the time. Now, maybe the NSA is super awesome and unlike every other agency that wants information they only ask when it is 100% appropriate and it perfectly meets the tight legal definition... all 100,000+ times these secret semi-warrants were needed... or maybe the FISA court makes a Soviet show trial court look impartial and skeptical of government motives by comparison.

    They had one national security letter request, out of the tens of thousands they had rubber stamped, where the government withdrew it after facing skepticism from the court. Wouldn't you kill to know what that one letter was where even the giant rubber stamps at FISA balked?

    Real courts, you know, the kind with two sides, when given a chance to rule have in fact ruled the NSA mass domestic spying to be illegal. It is amazing what judges say when they don't have the government hand rammed up their ass. We can thank Snowden for giving us at least a chance to have this illegal (as ruled recently) activity see the light of a real court.

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