Kevin Zeese, Courage Advisory Board. 9 July 2014

Edward Snowden submitting to prosecution in the United States would be like Alice going into the courtroom in Wonderland.

Alice stood before the King and Queen of Hearts who served as the judges. The jurors, Alice realises, are “stupid things.” The first witness against her was the Mad Hatter who is as mad as the culture he represents. The guinea pigs who protest are immediately “suppressed” by having their mouths tied up and being put into a bag and sat on by the King so their protests cannot be heard. The most important evidence in the trial was secret, a poem whose author is unknown and which concludes:

For this must ever be a secret,

Kept from all the rest,

Between yourself and me.

Alice realised the court room, with the icons of a justice system (a judge, jury, witnesses), was really a sham that mocks a legitimate legal process. To confirm her realisation, the King said, after the meaningless secret poetry evidence, that it was “the most important piece of evidence” and “let the jury consider their verdict.” The Queen retorts: “No, no! Sentence first; verdict afterwards.”

Last week, former Secretary of State Hillary Clinton joined the current Secretary of State John Kerry in urging Edward Snowden to come home and face prosecution. Clinton told the Guardian that he should “return knowing he would be held accountable and also able to present a defense.” When asked about whether he could really present a defense, Clinton said:

In any case that I’m aware of as a former lawyer, he has a right to mount a defense. And he certainly has a right to launch both a legal defense and a public defense, which can of course affect the legal defense.

In fact, under current US law, Snowden would face a criminal process with virtually no defense, a pre-ordained outcome and he would be silenced during the process. The law he would be charged under, the Espionage Act, provides for no real defense and the due process afforded would be inadequate, resulting in an unfair trial and a lengthy sentence.

On 14 June, federal prosecutors in Alexandria, VA, filed espionage charges against Edward Snowden. He became the eighth person to be charged under the 1917 Espionage Act during the Obama presidency, more than double all previous presidents combined. Under the three current felony charges, Snowden faces up to 30 years in prison. The prosecutors could add additional charges when Snowden is indicted.

Recent court decisions, including the prosecution of Chelsea Manning, have interpreted the Espionage Act to not require proof that the person accused intended to commit espionage. If the person intended to blow the whistle on illegal activity and was acting in the public interest, as in the case of Snowden and the NSA, that would not be a defense.

Former US intelligence officials had given Snowden an award for integrity in intelligence. A judge on the FISA surveillance court, David Saylor, acknowledged, “The unauthorized disclosure … have engendered considerable public interest and debate…” Even the Director of National Intelligence, James Clapper, acknowledged “I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen.” And the reporters who worked with Snowden to publish the documents won the top journalism award, the Pulitzer Prize for Public Service. None of this would be relevant in court under the Espionage Act.

The jury would not be allowed to consider how the leaks were a public service, not espionage. Unlike other criminal laws violation of the Espionage Act is a strict liability law — there is no defense for a whistleblower who has admitted they leaked the documents, i.e. the fact of the leak is espionage even if the intent was to serve the public interest by exposing crimes by the government. As a result, even though Snowden was not a spy committing espionage — in the traditional sense of the term as someone spying for a foreign enemy — the law could still be applied to him.

In addition, rather than due process allowing a legitimate defense as the Constitution requires, his trial would rely on warped procedures that actually prevent the basics of a fair trial. It is very likely that Snowden would be denied bail and held in prison pending trial despite the Constitution providing for a right to bail, especially since he fled the nation and sought political asylum in a foreign country. Being incarcerated pending trial makes mounting a defense very difficult and would preclude communication with the public and the media. Clinton has it backward: unlike his current situation, where Snowden can explain himself and the importance of documents being released, he would be silenced.

As in Manning’s and other national security cases, it is likely that much of the evidence in the trial would be classified as secret which would severely limit the number of people who can see it and prevent the public and the media from seeing all of the evidence, despite the Constitution requiring a public trial. As in Chelsea Manning’s case, large portions of the trial would be out of public view because the government would claim national security secrets would be breached if the trial were completely public. This would keep the public uninformed of the real nature of the facts and in the dark when the inevitable conviction results. Pundits supporting the security state would say: “Well, you can’t criticise the verdict because you do not know what the judge and jury knew; you did not see all the evidence.”

Finally, the trial would be held in federal court in Alexandria, Virginia. This is where the grand jury has been based. The jurisdiction of this court includes the Pentagon, Pentagon City, Crystal City and Rosslyn, areas concentrated with military, security and intelligence contractors as well as people working in the Pentagon and their relatives. The Alexandria federal court is known to be very much a pro-security state court in part because of the make-up of the jury pool. Is this the “impartial jury” the Constitution envisions? It would be impossible for Snowden to get a fair trial.

Why should Snowden submit to a judicial process that would be so unfair and obviously unjust? Surely Clinton, a former lawyer, and Kerry are well aware that Snowden would be prosecuted in a phony Kangaroo court where the deck would be stacked against him, so their comments are false rhetoric, like Kerry calling on Snowden to “man-up,” comments designed to confuse the public. They know that what they are suggesting would result in Snowden facing an unfair prosecution with a pre-ordained conviction resulting in a lengthy sentence.

Should Edward Snowden submit to this mocking of legitimate trials, where there is no real due process or any opportunity to prove his innocence? That is what US security state trials have become. A sham of justice, something that Edward Snowden should never submit to.

Kevin Zeese is an advisory board member of the Courage Foundation. He is an organiser with Popular Resistance, serves as the Attorney General of the Green Shadow Cabinet and on the steering committee of the Chelsea Manning Support Network.