by Rachel Blevins
On Wednesday, Secretary of State John Kerry was asked about fugitive Edward Snowden, the man who exposed the acts of the National Security Agency.
“He should man up and come back to the United States if he has a complaint about what’s the matter with American surveillance,” Kerry told CBS This Morning. “Come back here and stand with our system of justice and make his case.”
However, if Edward Snowden were to return to the United States, his transition would not come as easily as Kerry claims.
In reply to Kerry, American Civil Liberties Union lawyer and legal advisor to Snowden, Ben Wizner, said that while Snowden wanted to return to the United States one day, he couldn’t do so under the current Espionage Act charges, which keep him from arguing that his disclosures served the common good.
“The laws under which Snowden is charged don’t distinguish between sharing information with the press in the public interest, and selling secrets to a foreign enemy,” explained Wizner. “The laws would not provide him any opportunity to say that the information never should have been withheld from the public in the first place. And the fact that the disclosures have led to the highest journalism rewards, have led to historic reforms in the US and around the world – all of that would be irrelevant in a prosecution under the espionage laws in the United States.”
In addition to the current charges against Snowden, his return to the United States might only increase the charges he faces. “He could be charged for each of the documents that has been published,” said Wizner. “The exposure that he faces is virtually unlimited under this.”
One man who knows what Snowden will be facing is Daniel Ellsberg. Ellsberg faced Espionage Act charges in 1971 for publishing the Pentagon Papers, which exhibited how the administration of President Lyndon Johnson had lied to both the U.S. Congress and the American people about the Vietnam War.
After hearing Kerry’s comments, Ellsberg responded in an article for The Guardian, in which he said,
“As I know from my own case, even Snowden’s own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.”
Ellsberg went on to say that even though he looked forward to offering a more detailed account in his trial than he had given previously to any journalist, he was denied the opportunity. He explained, “I had saved many details until I could present them on the stand. But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he ‘had never heard of a case where a defendant was not permitted to tell the jury why he did what he did.’ The judge responded, ‘well, you’re hearing one now.’ And so it has been with every subsequent whistleblower under indictment, and so it would be if Edward Snowden was on trial in an American courtroom now.”
Michael German, from the Brennan Center for Justice, pointed out that the Obama administration has used the Espionage Act inconsistently – choosing to prosecute some whistleblowers, while leaving others alone.
“I think of lot commenters have pointed out that the Obama administration has charged more people who leak information of public concern to the press as spies under the Espionage Act than all previous administrations combined,” German explained.
“But what that doesn’t capture is how aggressively the Obama administration has gone after people who leak information to the press – exclusively when that information is critical of government policy.”
German used the example of Chelsea Manning, who, just last year, was held in solitary confinement for nine months before being convicted of violating the Espionage Act, and other charges, which led to a sentence of 35 years in prison.
“He isn’t blind,” Ben Wizner said, when referring to Snowden’s knowledge of the Chelsea Manning example. “Snowden saw what happened to other people who faced prosecution under the Espionage Act, and he saw the state of the law, which would not have allowed him to either to challenge the government’s improper withholding of this information in the first place, or to hold up the enormous public value of these disclosures. All that would have been irrelevant.”
Regarding Snowden’s possible return to the United States, Wizner said, “The only way around this unjust and I think unconstitutional legal regime would be a negotiated settlement. That can always be accomplished through negotiation, and it can be accomplished through amnesty. But unless Congress amends the Espionage Act to take into account its lack of public interest defense, the only resolution can be a negotiated one.”