What happens if the U.S. manages to catch NSA leak fugitive Edward Snowden? At Lawfare, Columbia law professor David Pozen looks at just how surreal a Snowden trial would get:
Snowden says his leaks revealed an unconstitutional and undemocratic system of surveillance. Polls suggest that many Americans agree. Even if the judge instructs the jury to set aside its views on the rightness or wrongness of Snowden’s acts, there is no guarantee it will. Jurors might be tempted to acquit Snowden, not because they believe he is factually innocent but because they believe he was morally justified.
A hypothetical Snowden trial could exclude jurors’ views about leaks? Why not: Compare this comment from Ohio State law professor Joshua Dressler on the seemingly distant George Zimmerman murder trial, in the Wall Street Journal:
Race was never expressly raised, but it was still there lurking. The question that the criminal trial didn’t answer, and probably couldn’t is whether, had Trayvon Martin been white, Zimmerman would have grown suspicious and confronted the person so aggressively.
Pozen argues that Snowden’s lawyers might push the opposite strategy, keeping national security out of the discussion, but playing with poll-tested public opinion on privacy—even though privacy law in theory wouldn’t be part of any of Snowden’s crimes. “Because it is so secretive, the N.S.A. must tend carefully to its legitimacy. Conspiracy theories and Big Brother fears always swirl at the margins of respectable opinion, threatening to go mainstream.”
The good professor’s little thought exercise concludes that trying Snowden might well backfire on the White House by putting the NSA on trial outside the courthouse, to the point of obscuring whatever legal maneuvering might be underway inside.
Snowden would no doubt obtain high-powered lawyers. Protesters would ring the courthouse. Journalists would camp out inside. As proceedings dragged on for months, the spotlight would remain on the N.S.A.’s spying and the administration’s pursuit of leakers. Instead of fading into obscurity, the Snowden affair would continue to grab headlines, and thus to undermine the White House’s ability to shape political discourse.
A trial could turn out to be much more than a distraction: It could be a focal point for domestic and international outrage.
Though the two issues (let’s call them security, comma, personal and security, comma, national) are vastly different discussions, the emerging debate surrounding the Zimmerman case—the close-focus legal one around the limitations of the U.S. court system and the broader one about what was really at issue—squares pretty well with what Pozen imagines for Snowden’s day in court. Though catching Snowden would likely help the White House’s effort to discourage future leakers, it’s not at all clear that prosecuting him wouldn’t shine light on the environment in which the incident occurred, more than on the incident itself. According to this useful report from NPR, the Zimmerman case could result in a Constitutional challenge to Florida’s so-called “stand your ground” law, despite a jury’s belief that George Zimmerman didn’t murder Trayvon Martin. Similarly, Snowden could be found guilty of leaking classified information—which he’s already admitted publicly that he did. Letting him explain his reasons for doing so from a witness stand, however, might be worse for the NSA than the leaks themselves have been, Pozen suggests.