Could Edward Snowden get a fair trial if he returned to the US?

The Espionage Act, a law from the World War I era, essentially prohibits defendants from arguing that their actions were made in the public interest.

Speaking to a New Hampshire audience on Saturday by Skype, Edward Snowden said he would come back to the United States to stand trial if the federal government guaranteed that it would be a fair one.

"I've told the government I would return if they would guarantee a fair trial where I can make a public interest defense of why this was done and allow a jury to decide," Mr. Snowden, a US National Security Agency whistleblower, told an audience at the New Hampshire Liberty Forum, an event organized by the Free State Project, a libertarian organization.

Viewed as a traitor by some and a patriot by others after his 2013 revelations of mass surveillance by the US government, Snowden was charged with three felonies, including two under the Espionage Act. The law, dating back to World War I, has been used against federal whistleblowers such as Daniel Ellsberg, a former US military analyst who in 1971 leaked the Pentagon Papers, revealing to the US public that the government had misled it about the Vietnam war, and Chelsea Manning, a US Army intelligence analyst who handed over 700,000 classified documents to WikiLeaks in 2010, revealing details about military operations in Iraq, Afghanistan, and the Guantanamo Bay detention camp.

The law is controversial because it bars defendants from arguing that their actions were made in the public interest, effectively leaving national security and intelligence community whistleblowers without any legal protections and discouraging future whistleblowers from coming forward out of fear of retaliation by the government.

In general, federal whistleblowers are protected by law because they are recognized as critical to “exposing waste, fraud, abuse, mismanagement and threats to public health and safety across the federal government,” says the American Bar Association.

But as Mr. Ellsberg has pointed out, for an American who has released classified information to expose government wrongdoing, the Espionage Act does not allow for a whistleblower defense.

“As I know from my own case, even Snowden's own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges,” wrote Ellsberg in a column in The Guardian in May 2014.

“That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people,” Ellsberg wrote. 

He was tried on twelve felony counts, carrying a maximum sentence of 115 years. But Ellsberg's case was dismissed in 1973 on grounds of governmental misconduct against him. Instead, it led to the convictions of several White House aides and played a role in the impeachment of President Richard Nixon.

This was not the last time the Espionage Act was used to strip whistleblowers of what would otherwise be their legal rights. The Freedom of the Press Foundation, a nonprofit organization that aims to defend public-interest journalism, co-founded by Ellsberg, highlighted in 2013 several other cases.

One is of former CIA officer John Kiriakou, who was the first to speak on the record with the media about waterboarding. He pled guilty in his Espionage Act case in 2012, partly because a judge ruled that he could not argue at trial that he intended no harm to the United States, says the foundation, which outlined several other cases:

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

In the Espionage Act case against NSA whistleblower Thomas Drake (which later fell apart), the government filed two separate motions to make sure the words "whistleblowing" or "overclassification" would never be uttered at trial.

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail – longer than most actual spies under the Espionage Act.

Snowden says he has offered the government to return home, has said he is willing to go to jail, and to discuss a plea deal, which former US Attorney General Eric Holder had said was a possibility, acknowledging that Snowden’s actions have helped spark international debate about the constitutionality of government surveillance and has led to efforts to rein it in.

But, as The Christian Science Monitor has pointed out, Mr. Holder’s successor, Loretta Lynch, stands by the US government charges against Snowden. And former NSA director Michael Hayden has said that Snowden will most likely die in Moscow.

Whatever happens with Snowden, whistleblower advocates, including the United Nations, are calling for a reform of laws like the Espionage Act, and for better protection of whistleblowers.

“Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred,” wrote Trevor Timm, a co-founder and the executive director of the Freedom of the Press Foundation.

“Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability,” he wrote.