Clinton and Kerry Call On Snowden To Submit To Sham Security State Trial
Snowden Should Refuse to Play "Alice in Wonderland"
Edward Snowden submitting to prosecution in the United States, would be like Alice going into the courtroom in Wonderland.
For this must ever be a secret,
Kept from all the rest,
Between yourself and me.
Alice realized the court room; with the icons of a justice system -- a judge, jury, witnesses -- was really a sham that mocks a legitimate legal process. To confirm her realization the King said after the meaningless secret poetry evidence, that it was "the most important piece of evidence" and "Let the jury consider their verdict." The Queen retorts "No, no! Sentence first; verdict afterwards."
Clinton told The Guardian that he should "return knowing he would be held accountable and also able to present a defense." When asked about whether he could really present a defense, Clinton said:
"In any case that I'm aware of as a former lawyer, he has a right to mount a defense. And he certainly has a right to launch both a legal defense and a public defense, which can of course affect the legal defense."
In fact, under current US law Snowden would face a criminal process with virtually no defense, a pre-ordained outcome and he would be silenced during the process. The law he would be charged under, the Espionage Act, provides for no real defense and the due process afforded would be inadequate resulting in an unfair trial and lengthy sentence.
On June 14th federal prosecutors in Alexandria, VA filed espionage charges against Edward Snowden. Snowden became the eighth person to be charged under the 1917 Espionage Act during the Obama presidency, more than double all previous presidents combined. As a result there is recent experience with how these cases are prosecuted. Under the three current felony charges Snowden faces up to 30 years in prison. The prosecutors could add additional charges when Snowden is indicted.
Recent court decisions, including the prosecution of Chelsea Manning, have interpreted the Espionage Act to not to require proof that the person accused intended to commit espionage. If the person intended to blow the whistle on illegal activity and was acting in the public interest, as in the case of Snowden and the NSA, that would not be a defense.
It would not be relevant that former US intelligence officials had given Snowden an award for integrity in intelligence. The fact that a judge on the FISA surveillance court, David Saylor, acknowledged "The unauthorized disclosure . . . have engendered considerable public interest and debate"" Even the Director of National Intelligence, James Clapper, acknowledged "I think it's clear that some of the conversations this has generated, some of the debate, actually needed to happen." And, that the reporters who worked with Snowden to publish the documents won the top journalism award, the Pulitzer Prize for Public Service. All of this would not be relevant under the Espionage Act.
The jury would not be allowed to consider how the leaks were a public service, not espionage. Almost certainly, the judge in Snowden's prosecution would not allow any arguments along those lines and exclude all such evidence. Unlike other criminal laws violation of the Espionage Act is a strict liability law -- there is no defense for a whistleblower who has admitted they leaked the documents, i.e. the fact of the leak is espionage even if the intent was to serve the public interest by exposing crimes by the government. As a result, even though Snowden was not a spy committing espionage -- in the traditional sense of the term as someone spying for a foreign enemy -- the law could still be applied to him.
In addition, rather than due process allowing a legitimate defense as is required by the Constitution, his trial would rely on warped procedures that actually prevent the basics of a fair trial. It is very likely that Snowden would be denied bail and held in prison pending trial despite the constitution providing for a right to bail, especially since he fled the nation and sought political asylum in a foreign country. Being incarcerated pending trial makes mounting a defense very difficult and would result in communication with the public and the media being impossible. Clinton has it backward, unlike his current situation, where Snowden can explain himself and the importance of documents being released, he would be silenced.
As in the Manning and other national security cases, it is likely that much of the evidence in the trial will be classified as secret which will limit the number of people who can see it and result in the public and the media not being shown all of the evidence, despite the Constitution requiring a public trial. As in the case of Chelsea Manning, large portions of the trial will be out of public view because the government will claim national security secrets will be breached if the trial were a completely public trial. This will keep the public uninformed of the real nature of the facts and in the dark when the inevitable conviction results. Pundits supporting the security state will say "well, you can't criticize the verdict because you do not know what the judge and jury knew; you did not see all the evidence."