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What Would Happen to NSA Whistleblower Edward Snowden If He Is Tried Under the Espionage Act?

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In Part 2 of our debate about whether National Security Agency whistleblower Edward Snowden should be pardoned, we examine whether he could get a fair trial if he returns to the United States to be tried for violating the Espionage Act. Snowden has said the Espionage Act does not allow a whistleblower or public interest defense, which means his motivations would not be considered in court. Under the act, “it would literally be inadmissible for [Snowden] to tell the jury his motivations,” argues Trevor Timm, executive director of the Freedom of the Press Foundation. Meanwhile, Bradley Moss, a national security attorney who has represented whistleblowers, says Snowden “could have gone to the intelligence committees” with his revelations and stayed within legal guidelines.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We continue to conduct a debate about the campaign this week that is calling for the pardoning of Edward Snowden. Nermeen?

NERMEEN SHAIKH: Well, during a Democratic presidential debate last year, Hillary Clinton was asked if she viewed NSA whistleblower Edward Snowden as a hero or a traitor. This excerpt begins with Hillary Clinton and then CNN’s Anderson Cooper.

HILLARY CLINTON: He broke the laws of the United States. He could have been a whistleblower. He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that.

ANDERSON COOPER: Should he do jail time?

HILLARY CLINTON: In addition—in addition, he stole very important information that has, unfortunately, fallen into a lot of the wrong hands.

ANDERSON COOPER: Governor O’Malley?

HILLARY CLINTON: So, I don’t think he should be brought home without facing the music.

NERMEEN SHAIKH: Well, speaking via video stream at a press conference on Wednesday, Edward Snowden said whistleblowers should not be tried under the Espionage Act.

EDWARD SNOWDEN: If we are to sustain a free society through the next century, we must ensure whistleblowers can act again and safely as a check on future abuses of power. Under the Espionage Act, which is the law under which most modern whistleblowers are charged, it is not possible to receive a fair trial. I have long said that I would return, were it otherwise, but the Espionage Act does not permit a public interest or whistleblower defense. Those charged under it are silenced by law. They are prohibited from exercising their right to tell the jury why they acted, in their belief, to protect the Constitution or the public interest. This World War I-era law does not distinguish between those who freely give critical information to journalists in the public interest or spies who sell it to a foreign power for their own.

AMY GOODMAN: So that’s Ed Snowden speaking yesterday, on Wednesday, via video stream from Moscow into a news conference that’s calling for his pardon, calling for President Obama to act before the end of his term.

We’re joined by Bradley Moss, national security attorney, and Trevor Timm, executive director of the Freedom of the Press Foundation, to continue this debate. Bradley Moss, what about this point? You have—Hillary Clinton is not alone in saying Edward Snowden should return and face the music, and Edward Snowden saying, under the Espionage Act, he cannot make his case.

BRADLEY MOSS: Well, I think he is somewhat, you know, confusing the issue a bit, a little bit. So, to be clear, yes, at the culpability stage, at the initial part of a prosecution, under the law, which has been upheld by the courts as constitutional, in terms of these particular details of the Espionage Act, he would not be able to make a public interest defense at the culpability stage. However, at the sentencing stage, as a purpose—for purposes of mitigation, for purposes of trying to minimize the extent of his sentence, if any, he could bring it up. And this is something he almost always glosses over. And when you listen to how he explains it, he says, you know, “I will come home if the law is basically changed for me.” It’s a bit of chutzpah on Mr. Snowden’s part here to basically say, “I’m more important than the law that was put in place by elected legislators, that’s being implemented by elected members of the executive branch, and that has been upheld by properly appointed members of the judiciary,” that he alone should be special enough to get a special privilege.

AMY GOODMAN: So, what about that, Trevor Timm? He may not be able to raise his defense in the trial, but, if found guilty, he could raise it at sentencing.

TREVOR TIMM: Yeah, I mean, this is a really important point, which I don’t think a lot of the public understands, which is that it would literally be inadmissible for him to tell the jury his motivation, which was to inform the American public, or all of the benefits from his leaks, like the new laws that have been passed and the court rulings and the—

AMY GOODMAN: Why is that?

TREVOR TIMM: —tech companies. Unfortunately, the Espionage Act is this draconian law from the World War I era which is written so broadly that means that the prosecution only has to prove very small portions of the law, which include: Did he give classified information to a person unauthorized to see it? And, you know, he freely admits this.

AMY GOODMAN: So Bradley says change the law then; we live in a democracy.

TREVOR TIMM: Oh, we should absolutely change the law. But the law is unconstitutional, and it’s actually never been ruled on by the Supreme Court, because there hasn’t been a lot of these cases in the past. And, unfortunately, it’s very expensive to appeal all the way to the Supreme Court when you’re a whistleblower and your life has been destroyed by the government that you are trying to help.

And, you know, you can say that in the sentencing stage Snowden would be able to talk about these things, but let’s think about Chelsea Manning. Chelsea Manning also had the opportunity to talk about these things in her sentencing stage, the brave WikiLeaks whistleblower. And the government freely admitted that no one had come to harm because of Chelsea Manning’s disclosures, yet she received 35 years in prison. So I really don’t think that Edward Snowden should come back if he’s facing decades or life in jail and won’t even be able to tell a jury why he did what he did.

NERMEEN SHAIKH: So, Bradley Moss, can you respond to that? Is Chelsea Manning’s case relevant, and does it set a precedent?

BRADLEY MOSS: Sure, I mean, and I don’t dispute that Chelsea Manning got 30-something years. But here’s also the other part: Chelsea Manning was supposed to get more. That was a reduced sentence from what it could have been. I believe it could have been as much as life in prison. I think at one point there was talk they were going to pursue the death penalty, which I didn’t think they should have done, which, thankfully, didn’t happen. But that was not—the punishment that Chelsea Manning got was not what she could have gotten, because it was reduced at sentencing.

And so, here comes the point again where, as far as Mr. Snowden is concerned, it doesn’t matter that the Congress hasn’t changed the law, it doesn’t matter that he has an army of lawyers—as far as I’m concerned, who are largely well credentialed, well qualified, could take this case to the Supreme Court for him to challenge the constitutionality of the Espionage Act. He’s saying, “I am so special, you should do it anyways for me. You shouldn’t make me go through all of that.”

AMY GOODMAN: Bradley Moss, you represent whistleblowers. Can you talk about how you see the whistleblowers you have represented versus Ed Snowden?

BRADLEY MOSS: Sure. Well, Amy, there’s many different types. And here is where there’s a difference sometimes between, I would say, the Ed Snowden and the Chelsea Manning whistleblowers versus some of the ones that I typically represent. For Edward Snowden, it wasn’t just about the ability to raise the concern. For him and for a lot of his advocates, it’s also that there has to be a change, that if they raise the concern, there’s some type of obligation on the government to make the change because of that concern. That’s not how a democratic—or, actually, excuse me, that’s not how a republican—small R—form of government works. If he wants to raise the concern, that’s fine. The elected officials are the ones who ultimately make that call. That’s not his call to make.

So, with our—with a lot of the individuals we represent, it’s all about raising your concern, going to the proper officials through proper channels, and then making sure you can go back and do your job and go back to your life. So, what I tell a lot of people is, look, there is no dispute—and Trevor and I are probably on mostly the same page here—the whistleblower process, as currently set up, is by no means great, by no means good. There’s a lot of holes. There’s a lot of retaliation that exists. But if you do what I will advise you to do, and go through the proper steps, you have a chance to raise your concerns and go back to your life. If you do what Edward Snowden did, you’re never going to do that. Your clearance is gone, you’re going to be fired, and you’re going to likely face criminal charges.

TREVOR TIMM: If Edward Snowden did what Bradley is saying he should do—

AMY GOODMAN: Trevor Timm.

TREVOR TIMM: —we would never have heard about this mass surveillance program. None of the changes that we have seen over the last three years would have happened. And he would have been put under a cloud of suspicion. He probably could have lost his job, like a lot of other whistleblowers who tried to go through these, quote-unquote, “proper channels.” You know, back in the Bush of administration, William Binney, who was one of—a top NSA executive, tried to internally go to his NSA superiors and say that they were breaking the law. Well, the FBI showed up at his house, when he was in the shower naked, with their guns drawn, and put him through absolute hell of an investigation that lasted years. And this happened to multiple people. And so, I think Edward Snowden saw that and realized that the only way that he was going to effect change was to go to the press. And I think there are millions of people that are happy that he did.

NERMEEN SHAIKH: Well, I want to go to another point that critics of Snowden have made, namely, that his leaks have endangered U.S. national security. Glenn Greenwald, the lead journalist who exposed NSA mass surveillance based on Snowden’s leaks, in an interview [with] Democracy Now! following the terrorist attacks in Paris last November, [refuted claims] that the Snowden leaks may have helped the perpetrators.

GLENN GREENWALD: Think about how many large-scale mass terrorist attacks were successfully perpetrated long before anyone knew the name Edward Snowden. You had the 2002 bombing of the nightclub in Bali, the 2004, 2005 attacks on the trains in Madrid and London, you had the 2008 mass shooting spree in Mumbai, you had the April 2013 attack on the Boston Marathon—all of which were successful multi-terrorist plots carried out without the U.S. detecting them, long before anyone knew the name Edward Snowden. So, if you’re somebody who wants to blame Edward Snowden or the disclosures for this attack, you have to answer: How did all those other attacks take place without the CIA or the NSA discovering them? …

What Edward Snowden taught the world is not that the U.S. government was trying to spy on terrorists—everybody, including the terrorists, have always known that. What the Snowden revelations showed the world is that it isn’t just the terrorists that they’re spying on, but everybody in the world. That’s why they’re so angry about these terrorist attacks.

NERMEEN SHAIKH: That was Glenn Greenwald speaking last November, arguing against critics who claim that Snowden’s leaks helped terrorists. Bradley Moss, your response to that?

BRADLEY MOSS: Oh, I think, unfortunately, Glenn doesn’t know, one way or the other, the extent to which the leaks by Mr. Snowden compromised vital intelligence operations that could have detected these things. And let’s be clear: Neither Trevor nor I nor anyone on this program knows those classified details, because they are classified at the moment. The only ones who know are various individuals within the intelligence community and various individuals in Congress. They know the details of what happened.

But here’s what we do know. We do know that various programs were compromised. Everyone—of course, everyone knew that NSA spied on people before Edward Snowden. But what Snowden showed was the vast extent of how much they had been able to do. He revealed which particular applications and software programs NSA had been able to hack into and intercept. He gave a playbook, essentially, of “Here’s what we’ve cracked, and here’s what we haven’t cracked. By all means, all of our adversaries, take note of this. You may have known, obviously, to use encryption, but now you know which encryption methods we have beaten and which ones we haven’t. So, please, by all means, use that to your advantage now and cut off whichever means—whichever communications you were using that were using those particular encryption apps.” And there’s a lot of—a lot of discussion in the immediate aftermath of Mr. Snowden’s leaks that say that sources went quiet, that various programs that—which had been compromised, which had to be rebuilt, they lost months’, weeks’, years’ worth of data, in the interim, while rebuilding it, because of these leaks, because not just terrorists, various foreign adversaries learned how we were doing these things, learned the details of it, and were able to adjust.

AMY GOODMAN: Trevor Timm, your response to Bradley Moss?

TREVOR TIMM: You know, I mean, the idea that terrorists did not know the NSA was using any means necessary to spy on them is just laughable. You know, what Edward Snowden revealed was that the NSA was gathering information on the entire population of the United States and the world. Millions and millions of innocent people learned what their government was doing. By the way, which—what they were doing was illegal, which a federal appeals court ruled and which Congress later curtailed the program. So I think we have to keep it in perspective here. You know, there are countless stories from pre-Snowden in major newspapers around the world talking about how terrorists have been using sophisticated encryption since the ’90s, since they know that the NSA tracks their cellphone calls. And, you know, this is an obvious red herring that a lot of government officials try to bring up to distract from the fact that they were breaking the law.

AMY GOODMAN: I wanted to wrap up on—with both of you talking about what exactly is being asked for here, and get Bradley Moss’s response. The campaign, you know, full-page ads in Politico, in The Washington Post, the call for pardon, clemency or a plea deal—explain, Trevor, all of these options.

TREVOR TIMM: Well, you know, we’re calling for a pardon. You can—if anybody wants to sign on and support the campaign, they can go to We believe what he did was an extraordinary gift to the American public and that millions of people feel the same. And so, hopefully—

AMY GOODMAN: Were you surprised by Holder’s comment, the former attorney general of the United States, Eric Holder?

TREVOR TIMM: Yeah, Eric Holder said a few months ago that Edward Snowden did a public service. And, you know, even President—

AMY GOODMAN: But it’s not how he acted when he was attorney general.

TREVOR TIMM: I know. And—

AMY GOODMAN: And what were saying about Obama?

TREVOR TIMM: You know, Obama himself said that this debate would make us stronger as a nation. And so, you know, I think he can really put his words into actions and, in his final months—

AMY GOODMAN: So, pardon, clemency—what would that be?

TREVOR TIMM: Well, you know, clemency is usually for people who have already been convicted and are serving a sentence, so clemency would be appropriate for Chelsea Manning, for example, who has already served six-and-a-half years in prison yet faces 35 more. Of course, there is a possibility that the Obama administration could negotiate a plea deal with Edward Snowden, so that both sides agree to—

AMY GOODMAN: Is that, in any way, in the works?

TREVOR TIMM: You know, I can’t speak for Snowden and his legal team, but I can say that we think that a pardon is certainly appropriate here. And, you know, presidents often use pardons for people who have committed reprehensible crimes and often things that are—that the public is wary about. But in this situation, President Obama can actually use his pardon power proudly and give the most important whistleblower of our generation a chance to come home.

NERMEEN SHAIKH: And, Bradley Moss, your response to the points that Trevor Timm has raised?

BRADLEY MOSS: Yeah, I mean, look, if Edward Snowden had only leaked the details of the domestic programs that we’ve discussed already, I could empathize with the idea of pardon or a plea deal that had no jail time. I could empathize with that. I could, you know, be on board with it to an extent. I can’t fathom an American president—any American president—pardoning someone who revealed and leaked the extent of these offensive cyber—sorry, signals intelligence operations overseas on all number of foreign adversaries and terrorist organizations. As far as I’m concerned, the intelligence community would put its hair on fire if the president actually tried to pardon Edward Snowden here. And I just don’t see him doing it.

AMY GOODMAN: So, folks, what do you think? You can come to our website at, go to Facebook, tweet at us. Let us know what side you come down on.

I want to thank you both for this discussion, Bradley Moss, national security attorney in Washington, D.C., and Trevor Timm, executive director of the Freedom of the Press Foundation and a columnist at The Guardian.

This is Democracy Now! When we come back, we look at the vast Trump empire and what it would mean, what would happen with his businesses, if he became President Trump. Stay with us.

Watch Part 1: Debate: Should Obama Pardon NSA Whistleblower Edward Snowden?

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