Snowden has said that previous whistleblowers — such as the National Security Agency’s Thomas Drake — did not get fair trials. But University of Texas scholar Robert Chesney argues that this is “an argument from anecdote” and that each trial, and judge, is different. He too believes that it is possible for Snowden to get a fair trial, although there would be tension between Snowden’s desire to “put the NSA on trial” and the court’s efforts to keep the scope of the trial more limited.
Columbia University’s David Pozen said that the government would likely get to make some presentations to a judge in secret, arguing about the harm produced by Snowden’s disclosures. But, he pointed out, what’s interesting about Snowden’s case is that “it’s so highly publicized already that the basic fact of the disclosures is old news, as is much of the content, some of which is now declassified.” Pozen’s concern is the lack of an established “public interest” defense for leakers who want to argue that their actions served important constitutional values.
The most striking aspect of Snowden’s substantive revelations on foreign intelligence is their limited consequences. That’s because they mostly showed the U.S. government doing secretly what it has said it is doing publicly — fighting the Taliban, spying in countries such as Pakistan and searching for al-Qaeda cells around the globe. The disclosures also revealed routine foreign intelligence operations. Some of these are justified, such as hacking into Chinese computer systems — something that Beijing does to other countries on a much larger scale. Others were unwise, such as tapping the phones of the leaders of Brazil and Germany. But none of these are morally scandalous. Bernard Kouchner, the former French foreign minister, said at the time of the revelations: “Let’s be honest, we eavesdrop, too. Everyone is listening to everyone else. But we don’t have the same means as the United States, which makes us jealous.”
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