Edward Snowden submitting to prosecution in the United States would be like Alice going into the courtroom in Wonderland.
Alice stood before the King and Queen of Hearts who served as the judges. Knaves were chained on the ground before them. The jurors, Alice realizes are “stupid things.” The first witness against her was the Mad Hatter who is as mad as the culture he represents. The guinea pigs who protest are immediately “suppressed” by having their mouths tied up and being put into a bag and sat on by the King so their protests cannot be heard. The most important evidence in the trial was secret, a poem for which the author is unknown and concludes:
For this must ever be a secret,
Kept from all the rest,
Between yourself and me.
Alice realized the courtroom, 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.”
Last week former Secretary of State Hillary Clinton joined with the current Secretary of State John Kerry in urging Edward Snowden to come home and face prosecution.
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 preordained 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 as not requiring 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 be irrelevant 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 will 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 leave the public uninformed and in the dark regarding the facts 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.”
Finally, the trial will be held in federal court in Alexandria, Virginia. This is where the grand jury has been based. The jurisdiction of this court includes the Pentagon, Pentagon City, Crystal City and Rosslyn, areas concentrated with military, security and intelligence contractors as well as people working in the Pentagon and their relatives. The Alexandria federal court is known to be a very pro-security-state court in part because of the make-up of the jury pool. Is this the “impartial jury” the Constitution envisions? Thus, it will be impossible for Snowden to get a fair trial.
Why should Snowden submit to a judicial process that would be so unfair and obviously unjust? Surely Clinton, a former lawyer, and Kerry, are well aware that Snowden would be prosecuted in a phony Kangaroo court where the deck would be stacked against him and the process would be unfair. So their comments are mere rhetoric (like Kerry calling on Snowden to “man-up”) designed solely to confuse the public. They know that what they are suggesting would result in Snowden facing an unfair prosecution with a preordained conviction resulting in a lengthy sentence.
Edward Snowden submits to this legal mockery, where there is no real due process or any opportunity to prove his innocence? That is what US security state trials have become. A sham of justice, something that Edward Snowden should never submit to.
Kevin Zeese is an advisory board member of the Courage Foundation. He is an organizer with Popular Resistance, serves as the Attorney General of the Green Shadow Cabinet and on the steering committee of the Chelsea Manning Support Network.