Culture Wars/Current Controversies

Why Edward Snowden Wouldn’t Get a Fair Trial

By Jesselyn Radack

While the controversy surrounding Edward Snowden‘s dissemination of National Security Agency information continues, members of Congress, journalists and advocacy groups keep repeating the same argument: Mr. Snowden should turn himself in, mount a solid defense and all will be righted at trial.

That’s a fantasy. I served as legal adviser to two high-profile whistleblowers between 2010 and 2013, former NSA senior executive Thomas Drake and former CIA officer John Kiriakou, both charged with espionage. I also witnessed last year’s court-martial of U.S. Army Pfc. Bradley Manning (now known as Chelsea Manning ), who faced charges of espionage and aiding the enemy. Here’s a run-through, to the extent that I am allowed to offer, of how such a shadowy proceeding would unfold.

Mr. Snowden has already been charged under an arcane World War I law called the Espionage Act of 1917, just as Mr. Drake, Kiriakou and Manning were for revealing information about surveillance, torture and war crimes, respectively. Daniel Ellsberg, the Pentagon Papers whistleblower, was the first American charged under the law for “leaking” national-defense information in 1971. The Obama administration has charged more whistleblowers with mishandling secret information under the Espionage Act—a total of seven, so far—than all previous presidents combined.

Under the Espionage Act, no prosecution of a non-spy can be fair or just. The 1917 law, enacted shortly after the U.S. entered World War I, was intended to apply to spies, not modern-day whistleblowers accused of mishandling allegedly classified information. The law was written 35 years before the word “classification” entered the government’s lexicon.

Edward Snowden Agence France-Presse/Getty Images

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.

That’s in part thanks to a dysfunctional classification system. Even government officials admit that over-classification has become rampant in government. J. William Leonard —director of the Information Security Oversight Office under President George W. Bush for seven years and an expert witness for Mr. Drake’s defense—stated in an August 2011 op-ed in the Los Angeles Times: “The classified information Drake was charged with having possessed illegally never should have been classified in the first place. . . . It clearly does not meet even the minimal criteria for classification.” That’s because the “classified'” information at issue in the Drake case was unclassified documents—some even published on the NSA’s intranet—that were retroactively stamped “classified” after being seized from his home.

But regardless of how inapt the charges, a defendant should get ready to pay: Mounting a legal defense will cost $1 million to $3 million. Mr. Drake had already spent more than $100,000 defending himself before pretrial proceedings even began. He took out a second mortgage on his house and emptied his retirement account to pay a private attorney. By the time he was indicted in 2010, he qualified as “indigent” and was appointed public defenders.

Next, before trial begins, a defendant must visit a Sensitive Compartmented Information Facility, or SCIF, to process information protected under the Classified Information Procedures Act. SCIFs are enclosed, government-controlled rooms for dealing with allegedly classified information allegedly leaked. This hermetically sealed, windowless room is the only place attorneys and their clients can discuss the evidence against the defendant.

The rules are airtight: Attorneys need security clearances to enter the SCIF. The response filings must be drafted in a government office, on a government computer, under the watch of a Justice Department security officer. Telephones, personal laptops and notepads are not allowed into the room. Attorneys cannot take notes. Additionally, the government files things in secret, under seal, to which a defendant has no access but must respond to. Unless the defendant’s team is clairvoyant and has eidetic memory, they are at a profound disadvantage.

Further disadvantages arise in the courtroom. The Classified Information Procedures Act is supposed to allow the government to create “substitutions” for classified information, such as summaries or redactions, as accommodations to be used in court. But the procedures can be manipulated in bizarre ways. In the Drake case, the government tried to invoke the “Silent Witness Rule,” wherein the judge, jury and lawyers must speak in code indecipherable to the public. If that were not Kafkaesque enough, the government even tried to make a “classified by inference” argument that, even though certain information was marked unclassified, Mr. Drake should have known that it should have been classified. Try to follow that logic.

But what comes next will dash any illusions from the “face the music” crowd that you can just “explain it all” to the jury. The Espionage Act has morphed into a strict liability law, which means the government does not have to show the defendant had a felonious intent. A defendant cannot argue that the information was improperly classified. First Amendment arguments have failed, largely because they would criminalize the journalism made possible by the “leaks.” The motive and intent of the whistleblower are irrelevant. And there is no whistleblower defense, meaning the public value of the material disclosed does not matter at all.

At the Manning court-martial, Judge Denise Lind would often read aloud her rulings, though the military only provided limited written transcripts of a fraction of the proceedings. Because I’m a lawyer, reporters and spectators often asked me to translate the legalese into English. More often than not, I was unable to do so. I had no idea what the judge was talking about because the underlying proceeding—pleadings and arguments—transpired in secret.

The Espionage Act is for spies like Aldrich Ames and Robert Hanssen, who sold secrets to enemies for profit. But thanks to vague and overbroad language, the law has criminalized a wide range of activities that are central to the news-reporting process and bear little or no resemblance to classic espionage. There are a dozen other criminal laws that could be applied to people accused of mishandling classified information. The government’s choice of the Espionage Act says more about its punitive powers than it does about the national-security interests the law was created to protect.

Ms. Radack is the director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower protection organization. She is a legal adviser to former NSA contractor Edward Snowden.

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