No legal guarantees for Edward Snowden

Snowden’s father claims that he seeks to broker deal with US for son’s return. Would say that there is some remote chance he might be successful? Read few comments by Robert Turner, Professor, Associate Director, Center for National Security Law, University of Virginia.

Lonnie Snowden said through his attorney that his son wanted “ironclad assurances” he would not be held in jail before trial or subjected to a gag order, and would be allowed to choose where he would be tried on federal espionage charges.

I don’t know if the father’s attorney was speaking for the son, but I don’t take the offer very seriously either way. It is a “get out of jail free” card (if you remember the game Monopoly 🙂 ); as, if the government agreed to such terms, the leaker could also agree, come back to America, and declare that he wants to be tried in Ecuador or Iceland! Neither country would have jurisdiction to try him even if it had a desire to do so, so the leaker or his lawyer would merely smile and announce: “Checkmate!”

There are hundreds of courts within America that also would lack jurisdiction and thus would have to dismiss the case if filed there.

The other terms of the demands would guarantee that he could continue to leak secrets, and since any good lawyer could put off a trial for months if not years, the leaker could spend his time on the college lecture circuit raking in big money and gaining a reputation as a high-school dropout who outsmarted the government and became a folk hero celebrity.

The Justice Department would also want to consider the implications of making such a deal with any fugitive, as others would soon demand the same terms. Because of the harm he has done, I would rank him among the top 0.1% of fugitive criminals. His disclosures have not merely endangered the lives of all Americans, but they have reminded intelligence services in other countries that they can’t trust America with their most sensitive secrets.

The transparent purpose of this “offer,” in my view, is to make the government look unreasonable and the leaker seem reasonable. And I suspect it will work with some people both in America and around the world.

My guess is that Snowden is not “anti-American” or a “spy” for any foreign country or terrorist group. (Well, not an intentional spy–he has certainly provided intelligence information of tremendous value to America’s enemies around the globe, above all the radical Islamic terrorist groups who aspire to murder large numbers of “infidels” (a group that in their view includes most people in your country as well). My guess is that they will change their means of communications and as a result Americans and other innocent people from around the globe will die.

I suspect Snowden’s primary motivation was personal fame and glory. People tend to pursue their perceived self interests, and just as we have copycat mass shootings when the first shooter gets his name and photo on the front pages of every newspaper in the country (and around much of the world), I suspect Snowden–whose life prior to this act was, to be generous, rather “unimpressive”–wanted to be “important” and have people interested in him and his pitiful life.

If he hasn’t already done so, I would expect him (or his public relations “handlers”) to talk about his great courage in taking on the American government, and his fear that America will send Predator drones or Navy SEALs to find and kill him. Surely he knows the odds of that happening are about the same as are the odds that the President will respond to his betrayal of trust by nominating him to be the Director of NSA. However, if his disclosures do lead to future terrorist attacks (which I would judge to be well over 90% likely), there is at least some risk that friends or relatives of victims will decide on their own to hold him accountable. I know some former American soldiers who are quite angry over what he has done, and were I his lawyer I suspect I would urge him to try to find a very secure place to spend the rest of his life.

Imagine, for example, if there is another terrorist attack along the lines of (or even worse than) 9/11, and it becomes clear that the reason we could not prevent it was because of operational changes by the terrorists. (Now that they know our capabilities, they will certainly adjust their communications practices–they may do horribly evil tings, but they are not stupid.) It might quickly become apparent that Snowden’s selfish desire for personal fame has endangered the lives of millions of innocent people, and that might create opportunities for other individuals who also want personal fame and glory to see who can be the first to track him down and hold him accountable. One might argue that his safest location would be to spend his life in an American prison, but if his efforts lead to successful terrorist attacks there might well be people already in prison who would like to be known as the man who killed the “leaker” who betrayed his country.

I don’t think I would want to be in his shoes when Americans get a clearer understanding of the likely consequences of his betrayal.

In theory, what could be Snowden’s best defense against the charges?

All of my knowledge of alleged facts comes from newspaper stories, so I’m forced to assess the situation based upon facts that may, or may not, prove accurate in the end.

The government will be required to prove each element of each offense “beyond reasonable doubt” before he can be convicted.  But my impression from statements attributed to him by various newspaper stories is that he has basically conceded the facts that would be necessary for conviction.  Indeed, he has reportedly admitted that he sought employment with a government contractor for the purpose of obtaining and disclosing sensitive national security secrets, which may undercut his earlier claim that he was essentially just doing his job when he discovered information that be believed was unconstitutional.

I assume he and his lawyers will try to present him as a “whistle blower” who disclosed classified information “for the common good”–alerting the people that their government was breaking the law.  But to succeed with this strategy, he would have to show that he had no alternatives short of disclosing classified information to a foreign newspaper.  In reality, there were a number of avenues he might have taken short of “going public.”  He could have spoken with the Inspector General at NSA, ODNI, the Department of Justice, the Intelligence Oversight Board in the White House, or a member of the House or Senate Intelligence Committee.  Without having even attempted any of these options, he will not have an easy time convincing a jury that these clearly unlawful disclosures were necessary.  And even if he personally believed they were necessary, that is not a defense against criminal prosecution.

His best hope is what we call “jury nullification.”  To be convicted, the government prosecutor will have to prove every element of every charged offense two 12 different jurors “beyond reasonable doubt.”  So all he has to do is to persuade one juror that he was an honest man trying hard to protect the constitutional rights of the people, and that juror might decide that justice would best be served by ignoring his technical guilt and voting “not guilty.”

His prospects for acquittal will be hurt by the reality that the programs he disclosed are NOT unconstitutional or otherwise illegal.  In the 1979 case of Smith v. Maryland, the Supreme Court of the United States held that a judicial warrant was not required to collect metadata (specifically, the numbers of phones being dialed from a particular phone) from the phone company.  And in the current case, the activities were conducted with judicial approval and the approval of the relevant committees of Congress.

Assuming that Mr. Snowden makes it to Ecuador and receives asylum, my guess is he is not going to like living there.  President Rafael Correa is hardly a “Libertarian” (which, I gather, Snowden claims to be), and he recently ordered the imprisonment of an elected member of the National Assembly and two political activists for having criticized him and has attempted to shut down independent newspapers.  Correa may enjoy using Snowden to embarrass the United States, but they are not likely to be natural allies.  And if Snowden’s presence in Ecuador leads to a further deterioration of U.S.-Ecuadorian relations, and the people of Ecuador suffer as a result, Snowden may become something of a nuisance.  Correa may well place constraints on Snowden’s efforts to seek further public attention, or might be required to parrot the PAIS Alliance party line as the price of his asylum.

Right now, Correa seems popular in Ecuador.  But Ecuador has an 1872 Extradition Treaty with the United States that specifically applies to the theft of valuable property, and there is no guarantee that a future Ecuadoran government won’t decide to reverse the amnesty decision.  So I’m not as sure that Snowden is going to have such a wonderful life in the years ahead.  It may be politically expedient to exploit them, but tyrants tend not to trust or even like individuals who betray their own countries.

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