If Snowden Returned To US For Trial, All Whistleblower Evidence Would Likely Be Inadmissible

from the pernicious-law dept

Tue, Dec 24th 2013 8:15am — Trevor Timm, FPF

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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Anonymous Coward, 24 Dec 2013 @ 8:22am

Cross posted with permission, from Freedom of the Press Foundation

I love it when the EFF worries about getting permission.
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Anonymous Coward, 24 Dec 2013 @ 8:32am

The government and media are still whining and complaining about this? Get over it already, it's over.
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Anonymous Coward, 24 Dec 2013 @ 8:33am

Re:
(that is, it's over. You lost.)
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out_of_the_blue, 24 Dec 2013 @ 8:43am

Problems is really LAWYERS, then: limiting what can present to jury.
Lawyers are the most pernicious and subtle evil afflicting us, especially from the bench. Anyone who goes into a court expecting fairness from a judge will be literally stripped of rights under the corporatized -- and largely secret -- rules, besides that unless wealthy enough to buy a real advocate then outright crimes will be committed BY the judge against you. And the whole system is corrupt, your own attorney is in the same medieval guild as the judge and actually only has allegiance to the guild which controls his future income, so a "natural" person is always effectively alone.

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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amazed_watcher, 24 Dec 2013 @ 9:01am

Two words
Jury Nullification

http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
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Anonymous Coward, 24 Dec 2013 @ 9:20am

Re:
It must be nice to be so easily satisfied. Me, I love it when snow bunnies ski in bikinis, but I hardly ever get my wish.
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Anonymous Coward, 24 Dec 2013 @ 9:53am

Compare to Dred Scott
Compare to Dred Scott, who also had no rights in court.

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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Anonymous Coward, 24 Dec 2013 @ 9:56am

Manning was sentenced to 35 years in prison and Snowden would be locked away as well. both for committing espionage against the USA, even though the only harm done was to let everyone else know what an arse hole the USA government is and similarly over it's security agencies. the reason one was sentenced to so long in jail and the other one will be if he ever comes back is simply because the judges can do so and are probably actively encouraged to do so! there was absolutely no need whatsoever to jail Manning for that length of time for showing the world the truth of how USA troops acted whilst in warfare, ie, that as far as these particular troops were concerned, anyone and everyone was fair game! similarly, there is no need to sentence Snowden for a ridiculously long spell in prison either, but 'everything is bigger' in the USA, so not giving these long terms in jail would be a waste of an opportunity for the government to flex it's muscles! would be better to thank them and ensure there is no need for this sort of thing to happen again! but then that's trying to us a sensible view!!
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Anonymous Coward, 24 Dec 2013 @ 10:06am

somehow?

somehow?
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Anonymous Coward, 24 Dec 2013 @ 10:07am

if snowden comes back, he'll be gunned down at the airport and some poor schumck who presumably shot him will be, too.
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Anonymous Coward, 24 Dec 2013 @ 10:27am

Re: Two words
They won't like it lol trust me last time I was on JD I voted not guilty on a drug charge. 11-1 I'm on methadone so I knew what the guy was going through and how not fun it is. 3 Hours later 2-10, 45 minuets more unanimous not guilty. There was no way in hell I was going to send a man to prison for a victimless crime.

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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Anonymous Coward, 24 Dec 2013 @ 10:30am

Snowden has almost certainly sacrificed all personal opportunity for the benefits of U.S. citizenship. The chances that "our" government will reform itself sufficiently to acknowledge Snowden's courage and patriotism during his own lifetime seem small.

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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DogBreath, 24 Dec 2013 @ 11:04am

Just like the Spanish Inquisition...
No one expects the Cardassian Justice System!

Unless your last name is Manning or Snowden... then you really, really should expect it.
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Anonymous Coward, 24 Dec 2013 @ 11:13am

Re:
If the US government was staffed by mature adults who were willing to admit to being wrong and actually apologize for their actions, we wouldn't be in this mess in the first place.

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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Anonymous Coward, 24 Dec 2013 @ 11:40am

Re:
Snowden's fairly young, so I could see the government getting to that point during his lifetime if he lives a relatively long life. It'd be kind of like Darrel Parker finally being exonerated, but it'd still be within his lifetime.
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Anonymous Coward, 24 Dec 2013 @ 11:47am

Ha, ha. Why would we give Snowden a trial? If we catch him, we'll send him to one of the new black sites (like at the Mogadishu airport) and waterboard him a few hundred times until he goes crazy, then hold him incommunicado in a secret location for the rest of his life. Or perhaps he will be found dead while assisting the authorities with their inquiries.

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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pouar (profile), 24 Dec 2013 @ 1:04pm

I'd tell the jury about all that anyway, inadmissible or not. I'd even have the trial recorded and posted on the internet.
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ring ring, 24 Dec 2013 @ 4:29pm

Re: Re: Two words
I was also on JD. I had gotten friendly with a woman that was doing needlepoint to pass the time. They charged her with possession of a weapon a small pair of snippers. The reason for this was they didn't want her to get lucky enough to be with me on the pool. Could tell you so much that went on that week.. But you'd never believe me. Anyway I was called again. I told the Judge I didn't trust the system or the government. Obviously he knew what I was saying and excused me before I was asked when answering questions by the Lawyers.
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Anonymous Coward, 24 Dec 2013 @ 6:45pm

When the US Gov is after you, do the opposite of what they want to you to do. It's just common sense.
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Rekrul, 24 Dec 2013 @ 7:34pm

Re:
I'd tell the jury about all that anyway, inadmissible or not. I'd even have the trial recorded and posted on the internet.

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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Rekrul, 24 Dec 2013 @ 7:37pm

Well if the government says that the circumstances and intentions of the person don't matter, who are we to argue? In fact, I think that same logic should be applied to all court cases.

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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techflaws (profile), 25 Dec 2013 @ 1:35am

�We believe he should come back, he should be sent back, and he should have his day in court."

Cause that worked so well for Manning.
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Time To Help (Your Turn), 25 Dec 2013 @ 11:39am

Official Edward Snowden Defense Fund
https://wikileaks.org/freesnowden

$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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