Fully Informed Jury Association

American Jury Institute

Function of Juries & Jury Nullification | 30 May 2014

-Edward Snowden Has the Right to the Benefits of Trial by Jury. Period.

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Earlier this week, NSA whistleblower Edward Snowden sat for an extensive interview, filmed in Moscow, Russia, with NBC’s Brian Williams. Here is the first of six parts:

The full interview is available here.

Edward Snowden 2013-10-9 (1) (cropped)Depressingly, yesterday I encountered two different people in totally different contexts on social media who advocated that Snowden be murdered. Not tried, convicted and executed even, but outright murdered without even a trial. And both have said that they would do it themselves if given the opportunity. This disturbing turn of events makes me think now is good time to revisit the Sixth Amendment to the United States Constitution, which reads in full:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; 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 defense.

“In all criminal prosecutions…”

ALL.

There is no exception for indefinite detention without charge or trial of those suspected (and even those who have been cleared) of terrorist activity such as has been the standard practice at Guantanamo for over a decade with no end in sight since the first prisoners arrived.

There is no exception for extrajudicial killing of so-called ‘kill list’ targets such as 16-year-old Abdulrahman al-Awlaki who was killed by drone stroke, never having been charged with a crime or his family ever having been told why he was targeted.

And there is no exception for people like Daniel Ellsberg, Chelsea Manning, and Edward Snowden.

Whether you view Snowden as a hero, a traitor, or something in between, he is Constitutionally guaranteed the exact same right to the benefits of trial by jury as every one of us in ALL criminal prosecutions.

So as Brian Williams asked him in the interview, why doesn’t he return to the United States to “face the music” and stand trial? Snowden explains:

It’s a fair question, you know, why doesn’t he face charges? But it’s also uninformed because what has been lain against me are not normal charges. They are extraordinary charges.

We’ve seen more charges under the Espionage Act in the last administration than we have in all other administrations in American history. The Espionage Act provides anyone accused of it of no chance to make a public defense. You are not allowed to argue based on all the evidence in your favor because that evidence may be classified, even if it’s exculpatory.

And so when people say, “Why don’t you go home and face the music?” I say, you have to understand that “the music” is not an open court and a fair trial.

Fellow whistleblower Daniel Ellsberg, who leaked the Pentagon Papers, echoes Snowden’s concern, explaining how the legal environment would be very different for Snowden today than the one Ellsberg faced decades ago:

As I know from my own case, even Snowden’s own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.

I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.

But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he “had never heard of a case where a defendant was not permitted to tell the jury why he did what he did.” The judge responded: well, you’re hearing one now.

Indeed, in recent years, the silencing effect of the Espionage Act has only become worse. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words “whistleblowing” and “overclassification” in his trial. (Thankfully, the Justice Department’s case fell apart one day before it was to begin). In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution “need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially.”

We saw this entire scenario play out last summer in the trial of Chelsea Manning. The military judge in that case did not let Manning or her lawyer argue her intent, the lack of damage to the US, overclassification of the cables or the benefits of the leaks … until she was already found guilty.

Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to “make their case” from outside the United States.

As things stand now, if Snowden returned for trial he would not only be on the typical playing field of courtrooms today that are heavily tilted toward prosecution with judges frequently siding with prosecutors, jurors being screened to ensure that none are fully informed about their right to exercise jury nullification, and so on. He would further be subjected to the FAR HIGHER hurdles put in place by the Espionage Act, which shamelessly gut the Sixth Amendment protections our founders insisted upon to ensure fair trials.

And that assumes that he even made it to trial. For the last few years now, the government has made it possible to evade the court system completely by dealing with undesirables via extrajudicial processes such as the onerous provisions of the NDAA that say the president may use the military to detain and imprison indefinitely without charge or trial any person captured anywhere in the world, the president’s no longer entirely secret kill list to target and kill undesirables without charge or trial, and more.

It’s been said that the least we are willing to settle for is the most we are going to get. The bar has dropped extremely low these days for dealing with so-called criminals, without the government even having to show evidence or prove that a crime has been committed. Regardless of what any of us personally thinks about Snowden, we should all be concerned about how he is treated. If we don’t mind that the government flagrantly ignores his right to a fair trial by jury as guaranteed in the Bill of Rights, what is standing between us and that treatment should we fall out of favor with those in power?

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