“Citizenfour,” a recently released documentary about Edward Snowden, is engrossing mainly because we get to see, up very close, the man behind the controversy. And he comes off well — thoughtful, articulate, a bit nervous but intelligent and well-intentioned. I say this as someone who believes that Snowden broke the law and should be held accountable but also that he performed a public service by revealing a vast system of domestic surveillance that lacks proper democratic oversight and judicial checks. There is a way to reconcile these positions: a trial.
Recently, via satellite at the New Yorker Festival, Snowden said he would “love” to stand trial in the United States. He should. It would transform what he has done from theft into civil disobedience.
At the New Yorker event, Snowden told Jane Mayer: “I have told the government again and again in negotiations that, if they’re prepared to offer an open trial, a fair trial . . . and I’m allowed to make my case to the jury, I would love to do so. But they’ve declined. . . . They want a closed court. They want to use something called the Classified Information [Procedures] Act,” or CIPA.
But the legal scholars I consulted — none of them die-hard conservatives or national security hawks — said that Snowden could get a fair trial. Norman Abrams of UCLA’s law school told me that the problem is not CIPA. The government would try to prove that Snowden broke the law by leaking classified government documents. Snowden would want to mount a defense to explain his motives and the benefits that resulted from his actions. The issue, Abrams said, is not CIPA but that “generally, motive and reasons for doing the deed are not an element of the crime, and trials are limited to proof of the crime and responses to that proof.”
Snowden has said that previous whistleblowers — such as the National Security Agency’s Thomas Drake — did not get fair trials. But University of Texas scholar Robert Chesney argues that this is “an argument from anecdote” and that each trial, and judge, is different. He too believes that it is possible for Snowden to get a fair trial, although there would be tension between Snowden’s desire to “put the NSA on trial” and the court’s efforts to keep the scope of the trial more limited.
Columbia University’s David Pozen said that the government would likely get to make some presentations to a judge in secret, arguing about the harm produced by Snowden’s disclosures. But, he pointed out, what’s interesting about Snowden’s case is that “it’s so highly publicized already that the basic fact of the disclosures is old news, as is much of the content, some of which is now declassified.” Pozen’s concern is the lack of an established “public interest” defense for leakers who want to argue that their actions served important constitutional values.
The most striking aspect of Snowden’s substantive revelations on foreign intelligence is their limited consequences. That’s because they mostly showed the U.S. government doing secretly what it has said it is doing publicly — fighting the Taliban, spying in countries such as Pakistan and searching for al-Qaeda cells around the globe. The disclosures also revealed routine foreign intelligence operations. Some of these are justified, such as hacking into Chinese computer systems — something that Beijing does to other countries on a much larger scale. Others were unwise, such as tapping the phones of the leaders of Brazil and Germany. But none of these are morally scandalous. Bernard Kouchner, the former French foreign minister, said at the time of the revelations: “Let’s be honest, we eavesdrop, too. Everyone is listening to everyone else. But we don’t have the same means as the United States, which makes us jealous.”
The Obama administration should make clear that Snowden would get an open, civilian trial in the United States. And Snowden should come home and make his case. He would surely argue that the laws he broke were unconstitutional, that he has changed American government for the better and that his actions are protected under the First Amendment. “His best bet at trial,” Chesney told me, “probably would be to convince at least one juror that he acted morally and therefore that the jury should not convict, no matter what. We call that jury nullification; it’s a sound strategy for him to pursue.” And even if he lost, the sentencing can take into account broader issues such as motivation and consequences.
It could be the trial of the century, shining a spotlight on something that has been hidden deep in the shadows for too long. And that is what Snowden says he has wanted from the start.