If Edward Snowden was ever to return to the US, he would face criminal charges for leaking information about National Security Agency surveillance programs. But legal experts say a trial could expose more classified information as his lawyers try to build a case in an open court that the operations he exposed were illegal.
Then a jury trial would make it awkward for Obama if they believe Snowden is a whistle-blower who exposed government overreach. Snowden surely would try to turn the tables on the government, arguing that its right to keep information secret does not outweigh his constitutional right to speak out.
“He would no doubt bring First Amendment defenses to what he did, emphasizing the public interest in his disclosures and the democratic values that he served,” said David Pozen, a Columbia Law School professor and a former legal adviser at the State Department. “There’s been no case quite like it.”
Administration officials say the possibility of a public spectacle wherein Snowden tries to reveal even more classified information to make his case has not lessened the Justice Department’s intent to prosecute him, and Attorney General Eric Holder has not warmed to calls for clemency for the former NSA systems analyst.
Officials have called Snowden’s leaks the single largest theft of secrets in U.S. history.
The DOJ breaks those alleged misdeeds into three charges filed in federal court in Virginia: theft of government property; under the Espionage Act, the unauthorized communication of national defense information; and willful communication of classified communications intelligence information to an unauthorized person.
In a November poll, 52% of Americans think Snowden should be charged.
Also it would be tough, too, to make a legal argument that Snowden was acting as a whistle-blower, exposing criminal wrongdoing by the government. No court has allowed a leaker of classified information to escape punishment on those grounds, Pozen wrote in a Lawfare blog post on the subject.
The first person convicted of espionage for furnishing classified data to a journalist was Samuel Loring Morison, who was employed at the Naval Intelligence Support Center in Suitland, Md., from 1974 to 1984. He was convicted of spying for leaking intelligence photographs in 1984 to Jane’s Defence Weekly, a British military magazine. Morison was sentenced to two years in jail, and later was pardoned by President Bill Clinton.
Snowden’s legal representative, Ben Wizner at the American Civil Liberties Union, said the government likely would not ever let the jury hear his client’s arguments for releasing the information on moral grounds.
“The Justice Department has successfully barred defendants in leaks prosecutions from mounting any kind of public interest defense by using the Espionage Act,” Wizner said. He said all the government would have to prove is that Snowden took national defense information and gave it to someone who wasn’t allowed to receive it.
“The government doesn’t have to prove that the disclosures were harmful to the country. The defendant can’t defend himself on basis that documents shouldn’t have been classified … and lower courts have upheld that,” Wizner said. “That’s why Edward Snowden is not taking his chances in a federal court. He wouldn’t be able to explain himself.”