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In this image made from video released by WikiLeaks on Friday, Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks during a presentation ceremony for the Sam Adams Award in Moscow, Russia. Should Snowden ever return to the U.S., he would face criminal charges for leaking information about NSA surveillance programs. But legal experts say a trial could expose more classified information as his lawyers try to build a case in an open court that the operations he exposed were illegal. (AP Photo)
Snowden trial could be awkward for U.S.
First Published Jan 21 2014 11:33 am • Last Updated Jan 21 2014 11:47 am

Washington • Putting former NSA contractor Edward Snowden on trial for leaking U.S. surveillance information could be an awkward public spectacle for the Obama administration.

More classified material could be at risk and jurors might see him as a whistle-blower exposing government overreach.

At a glance

NSA leaker Snowden nominated for university post

London » The University of Glasgow says Edward Snowden is among those running for the position of rector, the students’ representative to university management.

The former National Security Agency contractor leaked documents disclosing details of U.S. spies’ surveillance of the Internet and telephone communications. Variously hailed as a hero and condemned as a traitor, he has been granted asylum in Russia.

Glasgow students say they contacted Snowden through his lawyers and he agreed to run. Ph.D. student Chris Cassells said they wanted to support Snowden and send a message opposing “the intrusive practices of state security.”

The university said Tuesday that the candidates are Snowden, cyclist Graeme Obree, writer Alan Bissett and Kelvin Holdsworth, the provost of St. Mary’s Cathedral in Glasgow. Voting takes place Feb. 17 and 18.

Some who have held the post in the past have been unable to come to Glasgow.

Given that Britain has an extradition treaty with the United States, where Showden is wanted on criminal charges, it is most unlikely that he would want to come.

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Snowden surely would try to turn the tables on the government, arguing that its right to keep information secret does not outweigh his constitutional right to speak out.

"He would no doubt bring First Amendment defenses to what he did, emphasizing the public interest in his disclosures and the democratic values that he served," said David Pozen, a Columbia Law School professor and a former legal adviser at the State Department. "There’s been no case quite like it."

Administration officials say the possibility of a public spectacle wherein Snowden tries to reveal even more classified information to make his case has not lessened the Justice Department’s intent to prosecute him, and Attorney General Eric Holder has not warmed to calls for clemency for the former NSA systems analyst.

Department spokesman Andrew Ames last week indicated there was no change in the department’s intent to prosecute, and that point was reinforced by National Security Council spokeswoman Caitlin Hayden.

"There’s been no change in our position: Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States," Hayden said. "He should be returned to the U.S. as soon as possible, where he will be accorded full due process and protections."

A former NSA general counsel, Stewart Baker, drawing from conversations with his former associates after New York Times and Guardian editorials called for clemency, said the issue "has been more of a media idea than something that is being seriously debated inside the government."

Both newspapers, along with The Washington Post, have received and reported on some of the documents Snowden took.

"I haven’t talked to anyone in government who considers this a possibility," Baker said.


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Officials have called Snowden’s leaks the single largest theft of secrets in U.S. history.

The Justice Department breaks those alleged misdeeds into three charges filed in federal court in Virginia: theft of government property; under the Espionage Act, the unauthorized communication of national defense information; and willful communication of classified communications intelligence information to an unauthorized person.

A November Washington Post/ABC News poll found 52 percent of Americans supported charging Snowden with a crime, while 38 percent opposed it.

Escaping conviction would be difficult.

Snowden has admitted taking and distributing the documents, explained Jason Weinstein, a former deputy assistant attorney general. The documents were first published in the Guardian and the Post in June, based on some of the thousands of documents Snowden handed over to Barton Gellman of the Post, Brazil-based American journalist Glenn Greenwald and Laura Poitras, a U.S. filmmaker.

It would be tough, too, to make a legal argument that Snowden was acting as a whistle-blower, exposing criminal wrongdoing by the government.

"To the legal argument that the programs were illegal, the government’s answer would be that the programs were legally authorized," Weinstein said.

"Your personal judgment as to whether the government is doing something illegal is not an element of the crime. You disclosed something you did not have permission to disclose."

No court has allowed a leaker of classified information to escape punishment on those grounds, Pozen wrote in a Lawfare blog post on the subject.

The first person convicted of espionage for furnishing classified data to a journalist was Samuel Loring Morison, who was employed at the Naval Intelligence Support Center in Suitland, Md., from 1974 to 1984. He was convicted of spying for leaking intelligence photographs in 1984 to Jane’s Defence Weekly, a British military magazine. Morison was sentenced to two years in jail, and later was pardoned by President Bill Clinton.

The Obama administration has pursued leakers aggressively, and Snowden’s breach was far more sweeping than Morison’s.

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