Snowden's Lawyer: Leaker Will Not Return Under 'This Regime'

Tuesday, June 10, 2014

A protester wearing a mask marches with a sign featuring the likeness of former National Security Agency employee Edward Snowden during the Stop Watching Us Rally. October 26, 2013 (Allison Shelley/Getty)

The drama of Edward Snowden began just over a year ago, when the NSA contractor turned whistleblower revealed the U.S. government's vast network of surveillance, from Angela Merkel's Germany to the firms of Silicon Valley. 

The information about the conduct of the U.S. government's electronic espionage has raised Constitutional questions and technological questions. Snowden's revelations have forced the issue of whether the law can ever keep up with communications technology, and whether the government can ever resist the temptation to use technical capabilities it acquires without establishing proper oversight.

In the weeks following Snowden's revelations, federal prosecutors charged Snowden with two felonies under the 1917 Espionage Act and one count of the theft.

Ben Wizner, director of the ACLU Speech, Privacy and Technology Project, is Edward Snowden's legal advisor. At a Core Club event in Manhattan, Wizner discussed the charges Snowden faces and his client's current state of mind.

“He will be back in the United States," Wizner told Takeaway Host John Hockenberry at the Core Club event. "He will not be back in the U.S. to face a trial under this regime. He will be back in the United States when this administration, or the next or the next, understands that the idea of locking away someone who launched a historic global debate is absurd."

Wizner believes that when it comes to Snowden, the approach taken by the U.S. government "will be viewed with astonishment and derision by the rest of the world." He adds that in the end, Snowden will ultimately be seen as a person who changed the course of history.

“I really do think that Snowden is one of these characters that bent history," he said. "In general, history is kind to whistleblowers. History is much less kind to overbroad claims of national security."

Winzer says that one needs to only look to the recent past to see that history favors whistleblowers. 

"Dan Ellsberg walks around with a halo around his head right now, but what was said about him in 1971 made the criticism of Snowden seem like child's play," says Wizner.

When Daniel Ellsberg leaked the Pentagon Papers, many believed his revelations would cause grave and irreversible damage to U.S. national security, with others saying that he was a traitor working for the Soviet Union. 

See Also: Daniel Ellsberg Discusses Snowden's NSA Leaks

"The playbook is the same," says Wizner. "I really do think that Snowden is, and Ellsberg agrees, a far more consequential whistleblower than Ellsberg was. In time, I think the negative views of him are going to go away."

Snowden, The Media and A Public Debate

Though Wizner is unsure when he will return to the United States, he says that under current law, the government's case against Snowden is open and shut.

"The only thing the government needs to show to lock Snowden away for life, incommunicado, is that he knew that the information that he disclosed to journalists was classified, and the he did it willfully," says Wizner. "Everything else is completely irrelevant and inadmissible in a trial. There is no public interest defense, and the government doesn't have to show that the information was properly classified. And that's why Edward Snowden believes and I believe that the smart move for him, if he wanted to contribute to this public debate, was to go not to a lawyer's office, but to an airport."

Remaining a fugitive does not complicate Snowden's legal case—it just impacts his "public case," Wizner says. However, if Snowden had remained here in the United States after his first revelations came to light, Wizner says that there would never be any "public case" at all.

"On day one, he would have been put in a solitary confinement cell, he would have been subject to special administrative measures, and he would not have been able to speak to the press," says Wizner. "This isn't speculation—it's fact. Chelsea Manning, who is already convicted, is categorically prohibited from speaking to any reporter or from even sending a letter to a reporter by the kinds of rules here. And what Edward Snowden knows dwarfs what she knows in terms of classified information."

In May 2013, Snowden began sending documents to journalist Glenn Greenwald and documentary filmmaker Laura Poitras—a calculated decision, according to Wizner.

"His model was going to allow journalists to lead rather than have him lead," says Wizner. "He wants journalists to decide, using the processes that I've outlined—what's in the public interest and what the public should know or not know. He has said very candidly in some interviews, including with TIME Magazine, that he doesn't always agree with the decisions that these journalists are making, on both sides."

According to Wizner, Snowden has at times been frustrated with the pace of the media coverage around these issues, and some of the content being published.

"What he thought he was providing for context they thought was the story," he says. "But he's comfortable with the process that he set up. It is a different one than the one that Wikileaks now advocates—it is not to just put out massive amounts of information and let the world process it and digest it how they will. It is for journalists to lead and make these decisions."

Suspicion First, Search Second?

Snowden believes that the NSA's practices violate the U.S. Constitution, which requires suspicion to come first and a search to come second, says Wizner.

"Because the NSA's and any government's capabilities have grown so quickly, they've essentially flipped that around," says Wizner. "Because they can now collect and store everything, they have come up with a legal regime that permits them to do that. They are arguing in cases in which we're litigating against them, that the Fourth Amendment to the Constitution has nothing to say about the NSA intercepting and storing as many communications of ours as it wants, as long as it leaves it in a digital box."

Wizner says that in order to facilitate the mass collection of data and communications, the NSA is essentially creating a "laboratory for vulnerabilities" by hacking into computers, undermining widely-used encryption systems, and installing malware, among other things.

"Once you've done that, you have opened it up to China, you have opened it up to criminal hackers in Russia that are trying to get your credit card numbers," says Wizner. "Technologists understand this—there is actually a conflict between surveillance and online security. We cannot have both."

Listen to the full interview to hear more from Wizner.


Ben Wizner

Produced by:

Cambra Moniz-Edwards and Jillian Weinberger


T.J. Raphael

Comments [7]

Dave de Lorge from Fresno

If, when the framers wrote the 4th Amendment Xerox had existed, would they have thought it would be alright to photocopy and file away all mail without reading it? That way, in case of legal cause and judicial warrent, they would be able to read it, but otherwise it would remain unsearched.

Who thinks that would have satisfied the intent of the 4th Amendment?

Should there be discussion of Amending the Amendment?

Jun. 10 2014 04:04 PM
RUCB_Alum from Central New Jersey

Ellsberg was arrested but was freed on a mistrial due to prosecutorial misconduct. Snowden broke his work contract to expose actions which were taken in our name and were authorized by Congress. He is, therefore, not a whistleblower. He is a leaker and until he has the courage to face prosecution for his actions, he is a cowardly leaker who puts his own opinion above the rest of ours. That makes him an egomaniac. Rubbing our noses in the amount of surveillance our reaction to 9/11 actually permitted is very useful to our relationship to our government but the actions themselves still deserve prosecution.

Jun. 10 2014 03:11 PM
Stephen from USA

Those that are advocating that Snowden should have stayed and gone to trial or availed himself of whistle blower protection, haven't or didn't read the article.

Jun. 10 2014 02:37 PM
U. from Little Rock, AR.

Straight to the point, Edward Snowden is guilty of treason as well as other charges that can, and should be filed against him. It is sad that the media now appears to be turning him into a hero, rather than the criminal that he is. If Snowden felt that he was doing the proper thing as a "whistle blower" he should have sought protection under the current whistle blower laws. Instead, it appears that he is yet another who wanted, and did receive, his fifteen minutes of fame. It angers me that the current administration has not taken more active steps in bringing him to justice. After all, he knew the inner workings of the NSA, which is not a small matter. Why should he be afforded the opportunity to remain free for what he did?

Jun. 10 2014 02:16 PM
Nald from USA

Snowden is a selfish narcissist and a coward. While I strongly disagree with the government's actions, I think it is wrong to portray him as a hero. If he believes so strongly that he is on the right side of history, and based on the information, he may well be, he should have the courage to confront the system rather than hiding behind lawyers and sympathetic journalists, particularly while seeking refuge in a country with no respect for international law.

Jun. 10 2014 01:20 PM

We are tearing up the Bill of Rights even though terrorism is not an existential threat to this country.

The biggest threat to this country is our fear and willingness to sacrifice our freedoms for security.

From the first inauguration of FDR:
"So, first of all, let me assert my firm belief that the only thing we have to fear is...fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance."

Pogo may have said it best:
"We have met the enemy and he is us."

Jun. 10 2014 11:58 AM

It's funny to watch history repeat itself. The case of Daniel Ellsberg should at least make this administration (and the media, even the so-called "liberal" part of it) approach Snowden with caution, especially where making judgement is concerned. Instead, it seems to have gone the other way and made both act with more haste. And bluster. The lack of wisdom on both sides is unnerving and undermines the whole idea of "learning from experience."

Jun. 10 2014 11:48 AM

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