Cost Benefit Analysis of Capturing NSA Leaker

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    Henry Brown

    IMO interesting commentary from Lawfare blog:
    What Happens When We Actually Catch Edward Snowden?

    By David Pozen

    The United States is pressing hard to get hold of National Security Agency leaker Edward Snowden. But if and when Snowden is apprehended, what then? This question deserves attention, too, because the denouement to this drama may be unpleasant not just for Snowden, but for his captors as well.

    The downside for Snowden is straightforward. He faces prison time in this country. Even if his disclosures were well-intentioned or exposed any misconduct, no court has allowed a classified information leaker to escape liability on those grounds.

    In the past, leakers typically got off easy. The vast majority were never charged with any crime. The first media leaker convicted under the Espionage Act, Samuel Morison, received a two-year sentence, served eight months, and was later pardoned. However, the Obama administration has taken leak enforcement to a new level. And Snowden’s security breach was so remarkable that his sentence could be much stiffer.

    If the case law is on its side, why would the government have reason to worry about prosecuting Snowden?

    One source of concern is the jury. Snowden says his leaks revealed an unconstitutional and undemocratic system of surveillance. Polls suggest that many Americans agree. Even if the judge instructs the jury to set aside its views on the rightness or wrongness of Snowden’s acts, there is no guarantee it will. Jurors might be tempted to acquit Snowden, not because they believe he is factually innocent but because they believe he was morally justified.

    It has happened before—in England. In 1985, Clive Ponting looked destined for prison after leaking Ministry of Defence documents that called into question the official story of the Falklands War. Ponting fessed up to being the source. The jury voted to acquit him nevertheless, and in so doing helped catalyze a movement to liberalize the laws against unauthorized disclosures.

    Additional concerns relate to the trial. Snowden would no doubt obtain high-powered lawyers. Protesters would ring the courthouse. Journalists would camp out inside. As proceedings dragged on for months, the spotlight would remain on the N.S.A.’s spying and the administration’s pursuit of leakers. Instead of fading into obscurity, the Snowden affair would continue to grab headlines, and thus to undermine the White House’s ability to shape political discourse.

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