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Any case in open court may expose more classified information

Snowden could use trial to showcase spy claims

AP

Should Edward Snowden ever return to the U.S., he will face criminal charges for leaking information about National Security Agency surveillance programs. But legal experts say a trial could expose more classified information as his lawyers try to build a case in an open court that the operations he exposed were illegal.

A jury trial could be awkward for the Obama administration if the jurors believe Snowden is a whistle-blower who exposed government overreach. Snowden surely will try to turn the tables on the government, arguing that its right to keep information secret does not outweigh his constitutional right to speak out.

“He would no doubt bring First Amendment defenses to what he did, emphasizing the public interest in his disclosures and the democratic values that he served,” said David Pozen, a Columbia Law School professor and a former legal adviser at the State Department. “There’s been no case quite like it.” The First Amendment of the U.S. Constitution guarantees freedom of speech and other basic rights.

Administration officials say the possibility of a public spectacle wherein Snowden tries to reveal even more classified information to make his case has not lessened the Justice Department’s intent to prosecute him, and Attorney General Eric Holder has not warmed to calls for clemency for the former NSA systems analyst.

A former NSA general counsel, Stewart Baker, drawing from conversations with his former associates after New York Times and Guardian editorials called for clemency, said the issue “has been more of a media idea than something that is being seriously debated inside the government.”

Both newspapers, along with The Washington Post, have received and reported on some of the documents Snowden took.

“I haven’t talked to anyone in government who considers this a possibility,” Baker said.

Officials have called Snowden’s leaks the single largest theft of secrets in U.S. history.

The Justice Department breaks those alleged misdeeds into three charges filed in federal court in Virginia: theft of government property; and under the Espionage Act, the unauthorized communication of national defense information; and willful communication of classified communications, intelligence information to an unauthorized person. Each of the three charges carries a maximum sentence of 10 years in prison on conviction.

A November Washington Post/ABC News poll found 52 percent of Americans supported charging Snowden with a crime, while 38 percent opposed it.

Escaping conviction would be difficult.

Snowden has admitted taking and distributing the documents, explained Jason Weinstein, a former deputy assistant attorney general. The documents were first published in the Guardian and the Post in June, based on some of the thousands of documents Snowden handed over to Barton Gellman of the Post, Brazil-based American journalist Glenn Greenwald, and Laura Poitras, a U.S. filmmaker.

It would be tough, too, to make a legal argument that Snowden was acting as a whistle-blower, exposing criminal wrongdoing by the government.

“To the legal argument that the programs were illegal, the government’s answer would be that the programs were legally authorized,” Weinstein said.

“Your personal judgment as to whether the government is doing something illegal is not an element of the crime. You disclosed something you did not have permission to disclose.”

No court has allowed a leaker of classified information to escape punishment on those grounds, Pozen wrote in a Lawfare blog post on the subject.

The first person convicted of espionage for furnishing classified data to a journalist was Samuel Loring Morison, who was employed at the Naval Intelligence Support Center in Suitland, Maryland, from 1974 to 1984. He was convicted of spying for leaking intelligence photographs in 1984 to Jane’s Defence Weekly, a British military magazine. Morison was sentenced to two years in jail, and later was pardoned by President Bill Clinton.

The Obama administration has pursued leakers aggressively, and Snowden’s breach was far more sweeping than Morison’s.

Snowden’s defense strategy could rest on graymail, said national security lawyer Mark Zaid, in which the defense threatens to reveal classified information in the trial if the prosecution insists on pursuing the case.

Zaid, who has defended clients in similar cases, said that could force government lawyers to argue to close much of the hearings, only feeding Snowden’s argument that the government is trying to hide misdeeds from the public behind a cloak of secrecy.

Snowden’s legal representative, Ben Wizner at the American Civil Liberties Union, said the government likely would not ever let the jury hear his client’s arguments for releasing the information on moral grounds.

“The Justice Department has successfully barred defendants in leaks prosecutions from mounting any kind of public interest defense by using the Espionage Act,” Wizner said. He said all the government would have to prove is that Snowden took national defense information and gave it to someone who wasn’t allowed to receive it.

“The government doesn’t have to prove that the disclosures were harmful to the country. The defendant can’t defend himself on basis that documents shouldn’t have been classified . . . and lower courts have upheld that,” Wizner said. “That’s why Edward Snowden is not taking his chances in a federal court. He wouldn’t be able to explain himself.”