Depending on your view, former NSA contractor Edward Snowden is either a patriotic whistleblower or a misguided traitor. He either revealed extensive violations of Americans’ constitutional rights or aided our enemies’ efforts to do us harm. He either deserves clemency for his disclosures or life in prison for his crimes.
How do we resolve this debate? The same way we resolve similar disputes in courts throughout the United States – with a public trial by an impartial jury. Unfortunately, criminal trials are not well suited to decide when the government has overstepped its bounds.
If Snowden were arrested today, extradited to the United States, and brought to trial, the rules of evidence would prevent him from arguing that his actions were necessary to reveal governmental wrongdoing. Nor would the jury hear about the legal challenges to the programs he has disclosed.
More importantly, the judge would instruct the jury that neither Snowden’s good intentions nor the fact that he may have revealed illegal activities are a defense to the charges against him. If this were a normal case, the jury would be asked to answer one question, and only one question: based on the evidence, did Snowden steal government secrets and intentionally disclose them? According to Snowden’s own statements, that answer is clear. But this is not a normal case.
Recently, a federal judge ruled that a program Snowden disclosed violates the constitution and must end. An internal document Snowden leaked from the NSA’s oversight division acknowledged that the agency flouted court rules and legal authorities on thousands of occasions.
And Snowden’s disclosures have forced James Clapper, the director of national intelligence, to admit that he previously provided “clearly erroneous” testimony to Congress about the NSA’s activities. As a result, Snowden’s defenders argue that putting him on trial for revealing classified information ignores the bigger picture – that his actions were necessary to expose egregious government misconduct.
But Snowden’s trial need not be typical. The Department of Justice and Snowden’s attorneys could agree to conduct it by a slightly different set of rules, rules that would permit the jury to consider the full extent of the alleged governmental wrongdoing he uncovered along with the full scope of his alleged crimes. For example, perhaps as part of an agreement for Snowden to return to stand trial, federal prosecutors could allow him to present evidence about the legality of the programs he disclosed and, ultimately, argue that his actions were justified by the alleged wrongdoing he revealed.
For its part, the government could present evidence of the harm allegedly caused by Snowden’s actions. Then, at the close of trial, the jury could consider whether, on balance, the classified information Snowden disclosed was important enough to the public interest that he should not go to jail for revealing it. These rules would be a departure from the standard practice in federal court. But a judge is likely to allow these procedures if the government and Snowden agree.
More importantly, by taking this approach, the government could place the difficult question of what to do about Snowden in the hands of the jury, which is exactly where it belongs. Throughout the United States, groups of 12 men and women, drawn from a cross-section of their communities, sit in courtrooms to consider evidence and render a verdict that represents the collective judgment of the people.
In this manner, ordinary American citizens stand between a defendant and the formidable power of our government. This system is no accident; the founders believed a jury trial was an essential bulwark against tyranny. Here, in a case that involves allegations of conduct that could be described as tyrannical, the jury should have its say. And the defenders of the NSA, who argue that Snowden’s actions constituted the highest form of treason, should stand up in open court and make their case. Then, with all the facts before them, we should let the jury decide.