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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.

3 Comments for “If Snowden Came Home, Would a Jury Convict?”

  1. Perhaps it is true that Snowden would get a really good defense team which might put the government on trial. But perhaps not. This trial would be in federal court not state court and it would be quite different from the OJ and Zimmerman state court criminal cases.

    The federal judge will be under tremendous political pressure and he will be almost hand picked by the prosecution. They will get to decide where to bring the case and they will choose carefully when they do.

    Also federal juries tend to be much different than state juries in their make up. They are usually better educated and more conservative.

    I think this case could end up being more like the Timothy McVeigh case than it is like the OJ or Zimmerman cases.

  2. xyz

    I hope someone sends this article to Bradley Manning so he has good laugh.

    I think you live in fantasy land. What will happen in reality is that US media will either ignore the whole thing, which is the better variant, or they will run with the government line and paint Snowden as traitor. He will be thrown into jail, where at minimum he will be held incommunicado and subjected to psychological torture like solitary confinement.

    If after years he doesn’t end up totally brainwashed and if he then gets to civilian court, you are indeed right that government will try to make everything secret under the flag of national security. The court will comply and nobody in the big media will give a sh*t outside of one or two opinion pieces. See Bradley Manning or the farce of Khalid Shaikh Mohammed trial.

    As for the jury, Obama will select area where people work for government, preferably for the security apparatus, and they will naturally see what he did as attack on them. You can be pretty sure the minimum sentence will be several decades.

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