Snowden On Trial

Chuck Schumer recently suggested that Snowden would be allowed to plead his case in court if he returned to the US to stand trial:

Trevor Timm says Schumer was wrong:

In reality, none of that information would be heard by a jury, if prior Espionage Act cases against leakers are any guide. Judges have ruled evidence of showing intent to inform the public, benefits of the leaks, and lack of damage to national security is inadmissible. We made this point just two weeks ago, but it seems worth repeating since it seems as though members of Congress opining on Snowden’s legal options do not know how the law works.

Fred Kaplan distinguishes between Snowden’s domestic and foreign revelations to argue that he doesn’t deserve clemency:

The documents that he gave the Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.” In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.”

Amy Davidson counters:

Kaplan says that some of what Snowden revealed isn’t useful for Americans to know; the extent to which that is so (and is harmful) is debatable. But Kaplan oddly includes on his list things like the worldwide collection of cell-location data, which has entangled and violated the rights of Americans. (He also errs in writing that the revelations don’t involve “any documents detailing the cyber-operations of any other countries,” something Britain’s GCHQ would be surprised to hear.) Nevertheless, there is no question at this point that the usefulness has been great, as even the President would concede.

Barro joins the debate:

Snowden’s defenders often say that his disclosures haven’t had any demonstrable negative impact on U.S. security. That relies on too narrow a definition of “security,” along the lines of “did they enable a terrorist attack?” The Snowden disclosures have worsened our relations with a variety of our allies and competitors, notably including the Germans, the Russians, and the Brazilians. The U.S. invests a lot of money and energy in fostering favorable international relations; if damage to those relations is irrelevant, there’s a lot of diplomacy we can just stop bothering with.

Ryan Lizza suggests that if the U.S. wanted to avoid international incidents, we shouldn’t have tapped Merkel’s phone. That’s probably true in the specific instance. But there are some things U.S. intelligence agencies should be doing that would annoy our allies if they were disclosed. There are many more whose disclosure would annoy our competitors. The Medvedev surveillance falls into this category: It’s something the NSA should have been doing, and something that should have been kept secret.