Responding to US secretary of state's comments, Snowden adviser Ben Wizner says 'negotiated settlement' would be necessary

Snowden unlikely to 'man up' in face of Espionage Act, legal adviser says

An adviser to Edward Snowden said on Wednesday that an unfair legal landscape made it unlikely that the NSA whistleblower would take US secretary of state John Kerry up on his invitation to “man up” and return to the United States.

In a television appearance on Wednesday morning, Kerry said that if Snowden were a “patriot”, he would return to the United States from Russia to face criminal charges. Snowden was charged last June with three felonies under the 1917 Espionage Act.

“This is a man who has betrayed his country,” Kerry told CBS News. “He should man up and come back to the US.”

Kerry’s comments came as NBC News prepared to broadcast an extended interview with Snowden on Wednesday night, beginning at 10pm ET. Snowden revealed his identity almost one year ago, on 9 June 2013.

Responding to Kerry’s comments on Wednesday, Ben Wizner, a lawyer with the American Civil Liberties Union and a legal adviser to Snowden, said the whistleblower hoped to return to the United States one day, but that he could not do so under the current Espionage Act charges, which make it impossible for him to argue that his disclosures had served the common good.

“The laws under which Snowden is charged don’t distinguish between sharing information with the press in the public interest, and selling secrets to a foreign enemy,” Wizner said.

“The laws would not provide him any opportunity to say that the information never should have been withheld from the public in the first place. And the fact that the disclosures have led to the highest journalism rewards, have led to historic reforms in the US and around the world – all of that would be irrelevant in a prosecution under the espionage laws in the United States.”

Snowden also could face an untold number of additional charges if he returned to the United States. “He could be charged for each of the documents that has been published,” Wizner said. “The exposure that he faces is virtually unlimited under this.”

Facebook Twitter Pinterest Secretary of State John Kerry said Snowden should 'man up'. Photograph: Pool/Reuters

In a clip of the interview released by the network, Snowden says he never “intended to end up in Russia” but that he was trapped there when the US government revoked his passport.

“So when people ask why are you in Russia, I say, ‘Please ask the State Department,” Snowden told NBC anchor Brian Williams.

Asked about this, Kerry replied : “Well, for a supposedly smart guy, that’s a pretty dumb answer, after all.”



“If Mr Snowden wants to come back to the United States,” Kerry said, “we’ll have him on a flight today.”

As an employee of a defense contractor working in an NSA facility, Snowden copied and removed top-secret documents estimated in a Pentagon report to number 1.7m. Snowden gave the documents to Glenn Greenwald, then a Guardian journalist, and others. The first reports based on the documents were published in the Guardian in June 2013.

Michael German, a fellow at the New York-based Brennan Center for Justice, said that the administration of president Barack Obama had used the Espionage Act inconsistently, prosecuting some whistleblowers but leaving others alone.

“I think of lot commenters have pointed out that the Obama administration has charged more people who leak information of public concern to the press as spies under the Espionage Act than all previous administrations combined,” German said. “But what that doesn’t capture is how aggressively the Obama administration has gone after people who leak information to the press – exclusively when that information is critical of government policy.”

German said the “pre-trial abuse that was inflicted on Chelsea Manning”, stood out as an example of an aggressive application of the law. Manning was convicted last year of violating the Espionage Act and other charges and sentenced to 35 years in prison. Before her trial, Manning was held for nine months in solitary confinement under conditions later deemed “excessive” by a military judge.

Wizner said Snowden was cognizant of the Manning example.

“He isn’t blind,” Wizner said. “Snowden saw what happened to other people who faced prosecution under the Espionage Act, and he saw the state of the law, which would not have allowed him to either to challenge the government’s improper withholding of this information in the first place, or to hold up the enormous public value of these disclosures. All that would have been irrelevant.”

A negotiated settlement with the government appeared to be the only way for Snowden to make his way back to the United States, Wizner said.

“The only way around this unjust and I think unconstitutional legal regime would be a negotiated settlement,” he said. “That can always be accomplished through negotiation, and it can be accomplished through amnesty. But unless Congress amends the Espionage Act to take into account its lack of public interest defense, the only resolution can be a negotiated one.”