If Snowden Returned To US For Trial, All Whistleblower Evidence Would Likely Be Inadmissible
from the pernicious-law dept
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 she 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.
Cross posted with permission, from Freedom of the Press Foundation
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Filed Under: ed snowden, espionage act, evidence, trial, whistleblowing
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I love it when the EFF worries about getting permission.
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Problems is really LAWYERS, then: limiting what can present to jury.
You should NEVER listen to a lawyer advising against jury trial. NEVER. For start, juries are your PEERS, your equals; judges are servants, and mainly servants of The System including the guild. A jury trial may be your only hope. Lawyers will tell you that juries may impose more than judges, but if you actually have an explanation that normal people can agree with, will far more likely find you not guilty than will any judge. -- You've seen pieces here where a judge was deliberately sending innocent kids to jail because paid to, got away with it for YEARS even though obvious to other lawyers! They're ALL corrupt: that's the ONLY way to get into the "bar". Lawyers must be "licensed" because dangerous, besides that makes a monopoly for academic crooks. -- Just try getting one to tell you what the "bar" means, or why you need an attorney to speak for you. It's nutty in itself.
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Two words
http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
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The man was pissed they knew exactly what I did but they could not prove it. Far as they were concerned he was garbage.
8 months later that guy died pulling someone out of a car fire. /s Sounds pretty trashy to me. s/
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Compare to Dred Scott
Section I
9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.
10. The plaintiff having admitted... that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri according to the Constitution of the United States, and was not entitled to sue in that character in the Circuit Court.
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somehow?
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My current less lofty but more reasonable hopes are that Mr. Snowden enjoys the most comfortable lifetime possible outside of U.S. jurisdiction, and that his heirs one day gain the satisfaction of a formal, official, public apology by the government of the U.S.
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But since we're ruled by petty, petulant children, expect more hissy-fits and temper-tantrums from their spokesmen, more propaganda (possibly via 60 Minutes again), and absolutely no apologies whatsoever for any of their actions, no matter how unjust or unlawful.
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Just like the Spanish Inquisition...
Unless your last name is Manning or Snowden... then you really, really should expect it.
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Either way, there's zero chance he'll see the inside of a courtroom; so things like the exclusionary rule, Constitutional rights, or the rules of evidence are unimportant.
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And the judge would declare an immediate mistrial. You'd get a stern warning from the judge and threats of additional charges if you do it again. Do it again and at your third trial, you'll either be gagged, or won't be allowed to attend it at all.
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Cop shoots someone, they get tried for murder. No explanation of their intentions or the circumstances, the jury just gets to decide if they did or didn't pull the trigger.
After all, if such a standard is good enough for the government, it should be good enough for everyone. Right?
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Cause that worked so well for Manning.
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Official Edward Snowden Defense Fund
$89,076 raised so far, 2,006 people have donated.
You can send BTC to the following address for the Journalistic Source Protection Defence Fund for Edward Snowden:
1snowqQP5VmZgU47i5AWwz9fsgHQg94Fa
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