If Snowden Came Home, Would a Jury Convict?

Given how the Obama administration has prosecuted other whistleblowers, Edward Snowden could not possibly receive a fair trial had he remained in the United States, says the adjacent article.

That’s a failure of foresight, is what David Pozen, a Columbia Law School professor and former State Department lawyer effectively says in an article in Lawfare titled “What Happens When We Actually Catch Edward Snowden?”

First, he points out that a trial might be as “unpleasant” for his captors as it would be for Snowden. It would shine a bright light on the totalitarian tendencies of a secret government that spies on all its people. In court we would hear the prosecution repeatedly make motions to suppress citing “national security” to stifle any further revelations, exposing more publicly than ever just how deep in the shadows our government operates.

Snowden would probably attract top flight lawyers. Eager to take the case pro bono whether for celebrity or probity, they would likely charge that the NSA had far exceeded anything permitted by the laws it claims justify its actions and that it has violated the civil rights protections of the Constitution. The government might find itself more in the dock than Mr. Snowden.

“Journalists would camp out inside”, Pozen says. And we would add that television and print media around the world — all those countries that the U.S. spies on — would fill its hours and pages with daily coverage. In the wake of gavel to gavel coverage of the Zimmerman trial, there would be public outrage over cover-up if the court was pressured by the government to disallow televised proceedings.

In a trial of someone who has exposed government wrongdoing, American hypocrisy would be on flagrant display to a world of countries long subjected to U.S. lectures about their treatment of dissidents. The author points out that the U.S. would undermine its “soft power” against human rights violations by other regimes, who would thereafter point the finger back at us for how we treat our own.

A recent Quinnipiac poll has 56% favoring Snowden’s actions versus 34% saying he is a traitor. Our bet is that the percentage will rise over time in favor of Snowden. And that, the author neglects to add, would produce daily crowds of demonstrators outside the courtroom waving placards for television transmission to the world. “A rogue leaker who comes to be seen by a large number of Americans as a persecuted truth-teller is a serious problem” for the nation’s intelligence gathering policies, says Pozen.

Then there is the question of the jury. Prof. Pozen offers this possibility:

“Even if the judge instructs the jury to set aside its views on the rightness or wrongness of Snowden’s acts, there is no guarantee it will. Jurors might be tempted to acquit Snowden, not because they believe he is factually innocent but because they believe he was morally justified.”

Maybe Mr. Snowden should rethink his options.