[ View the story "Can Edward Snowden 'make his case'?" on Storify] Can Edward Snowden 'make his case'? Many lawmakers think Edward Snowden should return home and have his day in court, but will his defense be admissible?
AJAMStream· Tue, Dec 24 2013 10:49:47
I do think he should come home -- I'd personally pay for his plane ticket -- and be held accountable for his actions.abcnews.go.com
He has traded something of value for his own personal gain that jeopardizes the national security of the United States. We call that treason. And I think that letter -- I think very clearly lays out who this gentleman is and what his intentions were clearly.abcnews.go.com
In a subsequent interview, Sen. Mark Udall (D-Colorado) suggested sweeping reforms to NSA surveillance, but echoed Rep. Rogers' assertion that Snowden should make his case that his leaks served a "higher purpose" in court:
He broke his oath. He broke the law. Come home, make the case that somehow there was a higher purpose here, but Edward Snowden ought to come back to the United States.abcnews.go.com
Nonetheless, recent legal precedent in national security leak cases suggests that Snowden would likely not be able to present a motives-based argument in his defense. Snowden is charged with multiple violations of the World War I era
. Despite this law's age, much of the precedent for its use has been set recently, as the Obama Administration has
it more the twice as much as all previous presidents combined.
In several prominent leak prosecutions under the Obama administration, defendants have been told evidence of their motives is inadmissible. John Kiriakou (depicted below) is currently serving a jail sentence for leaking information about the CIA's torture program. Kiriakou was
to argue in court that he had no intent to harm the United States. In his defense pleading, Kiriakou's lawyers
proving the absence of malicious intent behind the leaks would have been a core aspect of their defense strategy had it not been deemed inadmissible.
In addition to motives, Snowden could also be barred from presenting evidence that no actual harm came from his leaks. Chelsea Manning (pictured below) leaked diplomatic and military documents to WikiLeaks, and was
from attempting to prove in court that the leaks did little harm to U.S. national security and foreign relations.
While leakers' have had their defenses restricted, prosecutors in Espionage Act cases recently had their burden of proof significantly reduced. The defense for former State Department contractor Stephen
Jin-Woo Kim (pictured blow)
to argue that there was no harm to the United States from the information Kim allegedly leaked. In reversal of a 30-year-old ruling, the presiding judge ruled that the prosecution had no responsibility to prove any actual or even potential harm to US interests. In that
, the old standard or proof "invites (if not requires) the jury to second guess the classification of the information.” Kim's defense attorney's replied that this interpretation of the Espionage Act allows the government to punish the leak of classified information regardless of whether it should have been classified.
The Snowden case continues to generate interest, and some Twitter users debated on Monday whether the likely content or outcome of Snowden's Espionage Act trial should affect his decision of whether or not to return home.
.@trevortimm Wait. Your argument is Snowden should not come back because a fair trial ends in a guilty verdict? #smarttakeGabriel Malor
@gabrielmalor no, it's because it's *not* a fair trial. He can't argue what he did is in the public interest and didn't harm the US.Trevor Timm
What do you think? Should Edward Snowden's motives have a bearing on his trial if he were to receive one?