Three years ago Edward Snowden worked as a contractor for the National Security Agency. Alarmed by the NSA’s massive invasion of privacy and violation of civil liberties he leaked thousands of pages of classified information about the program to the public. His revelations were really nothing new; anyone with both eyes open could have learned the truth about the spy agency’s sinister agenda nearly twenty years earlier. They watch and listen to everything and everyone constantly. It’s conceivable that even as I type this article an NSA computer is dissecting it. Certainly within minutes of my official posting the electronic analysis will be completed. The whole thing will be archived. If the computer senses a threat, I will be passed on to human analysts.
Most of these people spend their days on Facebook or playing video games. Usually they miss alerts. That’s good when it comes to dissenting bloggers, bad when it’s ISIS. However, if a human verfies a possible threat, an investigation may ensue.
Again, if the danger is real and the investigative methods legal, it is a good system. There are plenty of real bad guys out there. As for the method, most electronic gathering is accomplished via open air interception. Anyone with a good enough scanner can capture a host of free floating transmissions. If you want your communication secure, either encrypt it, mask it, or don’t transmit it.
Snowden discovered that when open intercepts aren’t enough the government will illegally wiretap and spy as necessary. The illegality comes from a lack of warrant, lack of probable cause, and a total absence of oversight.
Acting as a whistleblower he disclosed this scheme to the public. As thanks the American redneckery and law and order, evangelical types branded him a traitor; the government declared him a fugitive. He now lives somewhere in Russia.
His choice of refuge turns geo-politics on its head. Thirty years ago Russia was a communist dictatorship that kept the people in line through spying and intimidation. Back then America was a freer country, a proud defender of the rights of the citizenry. Things change.
Snowden faces prosecution and assured imprisonment for decades should he return home. Yesterday, via video, he told a group of New Hampshire based libertarians he is willing to come back and face the music – conditionally. “I’ve told the government I would return if they would guarantee a fair trial where I can make a public interest defense of why this was done and allow a jury to decide,” he said.
The whole affair is pointless to begin with. Three years later nothing has changed. No tangible evidence of damage to national security has manifested due to the leaks. Another holder of classified information, who leaked the same, is a leading contender for President. The people, most of them, never heard Snowdon’s warning in the first place. Those that heard forgot having more important things to attend – television, tattoos, football, etc. The NH libertarians are part of the .003% that get it. They represent a statistical outlier, an anomaly not worthy of official consideration. The NSA spies on, unhindered.
If Snowden ever returns and is prosecuted, he WILL NOT receive a fair trial. Such things simply do not happen in 21st century America. In fact, the American courtroom is the last place one should expect to find justice. No one gets a fair trial. Most don’t get a trial period. Snowden knows this. Thus, he lives abroad.
He and his attorneys have explored a plea deal with the feds. Most criminal cases end in pleas rather than trials. This is because people understand the system is so corrupt, it is usually better to accept a shorter jail term by coping to lesser charges. There have been exceptions. I recall a woman in Alabama who, faced with criminal tax charges, took the IRS to court and won. James Trafficant did the same thing in the 1980s. Both were plain lucky.
Snowden is looking for something different. He asks that his trial be conducted according to the Constitution. The Sixth Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” It mandates due process of law. That will not happen.
The particular charges are tantamount to Treason, one of the three specifically enumerated crimes in Article One of the Constitution. I’ll give the government that solid ground.
An indictment against Snowden has already been issued by a federal grand jury. Such juries used to be an independent check on prosecutorial misconduct. Today they merely indict as ordered by the U.S. Attorney, being no more than a tool of the DOJ. Defendants do not have a say in the process and the government can present any information, true or false (frequently lies) anyway it wants. Thus, fairness has already been compromised.
The Fifth Amendment mandates Due Process and prohibits double jeopardy. Rest assured that if, by odd chance, Snowden beat the charges, the government could then charge him with something else. Or, they could declare him a material witness, enemy combatant, material witness enemy, leprechaun or any other term(S) they make up and just imprison him. Just because they can. They could also just kill him without pretense or explanation. Just because.
In between the grand jury’s lapdogging and the double jeopardy potentially lies the trial. At trial the government controls everything. They get to present any type of evidence they like, often as a surprise to the defense. The defense is discouraged from attacking said evidence even when it is demonstrably false. The judge will move heaven and earth to keep defense friendly information out of the show. Occasionally defendants try to put the government on trial too. Judges, being government agents themselves, try to stop this. Remember, Snowden could bring in thousands of pages of documents damaging to the state. His ultimate argument could be that even if he technically broke the law, he only did so to expose worse behavior by the feds, thus he is really innocent and should be acquitted.
Such argument leads to potential jury nullification of the specific law as applied to a specific defendant. This is not a theory but an ancient design, a final check against corruption where the entirety of the legal and factual circumstances are left to the enlightened determination of the jury. Judges will defy the laws of physics to try to stop this from happening.
Then there’s the jury itself. Ages ago juries were a collection of intelligent men who were peers of, actual friends of the defendant. Being his friends and knowing his character they could weigh the presented evidence against their knowledge, thereby forming a reasonable judgement.
Today elaborate safeguards are in place to ensure jurors have never heard of the defendant let alone be his friends. The government wants dumb submissive jurors who will easily go along with what they’re told. Modern society makes this a given. A jury is usually nothing more than twelve stupid, poorly dressed, uninterested saps who may just as well be assembled of random midnight Wal-Mart shoppers.
This is the program to which Snowden would return. Sad, yes. Comical, perhaps. Fair? Anything but. Luckily, modern Russia is a pretty nice place.