Most Americans oppose the NSA's vast mass surveillance phone records program, but the whistleblower who told Americans about the program - Edward Snowden - has been forced to seek political asylum after the U.S. government stranded him in Moscow by revoking his passport. The U.S. has charged Snowden the Espionage Act, an arcane law meant to go after spies, not whistleblowers. Having represented NSA whistleblower Thomas Drake and CIA whistleblower John Kiriakou throughout their own prosecutions under the Espionage Act, I have a piece in the Wall Street Journal (you can view the whole article without a subscription if you find it via search) articulating exactly what an Espionage Act prosecution of a whistleblower looks like:
Under the Espionage Act, no prosecution of a non-spy can be fair or just. . . .Trevor Timm for the Freedom of the Press Foundation (which recently named Snowden to its Board of Directors) similarly explained that,
The Espionage Act effectively hinders a person from defending himself before a jury in an open court, as past examples show.
In the case of Mr. Drake, who disclosed massive fraud, waste and abuse in NSA surveillance programs, the government moved to preclude the word "whistleblowing" from trial. All felony counts against him were dropped, and he pleaded guilty to a minor misdemeanor not involving classified information.
Kiriakou, the first CIA officer to tell the media about waterboarding, could not tell the jury about his lack of intent. He accepted a plea bargain on a non-Espionage Act count.
And Manning's salutary motive and intent, for revealing the military gunning down innocent civilians in Iraq as if they were playing "Call of Duty," was ruled inadmissible until sentencing. The court found Manning guilty.
Mr. Snowden can expect the same unfair treatment.
If Edward Snowden comes back to the US to face trial, he likely 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.
The certainty of unfairness in an Espionage Act case against Snowden is amplified by high-ranking government officials' propensity to smear Snowden on national television and the main stream media's willingness to reprint their prejudicial and unfounded allegations as fact.
Chair of the House Intelligence Committee Rep. Mike Rogers and Chair of the Senate Intelligence Committee Dianne Feinstein appeared on the Sunday talk shows last week to imply not so subtly and without any evidence that NSA whistleblower Snowden was actually a Russian spy. Despite Rogers' willingness to throw mud on Snowden on national television, he was decidedly less verbose with Jane Mayer of The New Yorker (a magazine whose fact-checking department is legendary):
Asked today to elaborate on his reasons for alleging that Snowden “had help,” Congressman Rogers, through a press aide, declined to comment.Mayer's piece, with quotes from Snowden himself, should finally once and for all put to bed the spying allegations:
Snowden, in a rare interview that he conducted by encrypted means from Moscow, denied the allegations outright, stressing that he “clearly and unambiguously acted alone, with no assistance from anyone, much less a government.” He added, “It won’t stick…. Because it’s clearly false, and the American people are smarter than politicians think they are.”Frankly, the main stream media needs to stop giving Feinstein and Rogers the platform to promulgate virtually unchallenged this false narrative that should have been roundly dispelled back in October I wrote about it after visiting Snowden in Russia:
I can say with certainty: Edward Snowden is not being controlled by the Russians, or anyone for that matter. . . .Feinstein and Rogers head congressional committees that were created to provide critical oversight of intelligence community activities, and should focus their energies on fulfilling their oversight responsibilities rather than spending their Sunday mornings trashing a whistleblower who everyone agrees disclosed information in the public interest without any evidence to support their prejudicial allegations.
First, he points out, he didn’t destroy his life to become a Russian asset.
Second, he’s in Russia only because of the United States, which revoked his passport while he was en route to Latin America.
Third, WikiLeaks journalist Sarah Harrison has been by his side the whole time, in part to bear witness to the fact that he is not engaged in spying activity.
Fourth, it is obvious that he chose to give information about NSA’s secret dragnet surveillance to the US people, not foreign adversaries.
Fifth, and perhaps most significantly considering the contrary narrative promulgated in the United States, he has not had access to the information he revealed since he left Hong Kong.
Here, rational logic fails and cognitive dissonance clouds him from seeing that the spy allegation is just a more incendiary version of the routine smears always leveled against whistleblowers.
On the other hand, Snowden's revelations about NSA's abusive mass surveillance throw into sharp relief the fact that Feinsten and Rogers have utterly failed make sure NSA complies with the Constitution. And, unlike the false "spy" narrative Feinstein and Rogers are perpetuating, Snowden's revelations are backed by fact and documentation.