As Snowden told Brian Williams on NBC later that night and Snowden’s lawyer told me the next morning, he would have no chance whatsoever to come home and make his case – in public or in court.
Snowden would come back home to a jail cell – and not just an ordinary cell-block but isolation in solitary confinement, not just for months like Chelsea Manning but for the rest of his sentence, and probably the rest of his life. His legal adviser, Ben Wizner, told me that he estimates Snowden’s chance of being allowed out on bail as zero. (I was out on bond, speaking against the Vietnam war, the whole 23 months I was under indictment).
More importantly, the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing. Legal scholars have strongly argued that the US supreme court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense. The Espionage Act, as applied to whistleblowers, violates the First Amendment, is what they’re saying.
John Kerry’s challenge to Snowden to return and face trial is either disingenuous or simply ignorant that current prosecutions under the Espionage Act allow no distinction whatever between a patriotic whistleblower and a spy. Either way, nothing excuses Kerry’s slanderous and despicable characterizations of a young man who, in my opinion, has done more than anyone in or out of government in this century to demonstrate his patriotism, moral courage and loyalty to the oath of office the three of us swore: to support and defend the Constitution of the United States.