Fair Trial for Snowden by salis2006
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.
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.
Full story at The Wall Street Journal
Against the Grain 