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Snowden, Go Home

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SNOWDEN
Barton Gellman via Getty Images

Edward Snowden, leaker extraordinaire of classified NSA documents, is said to be seeking an extension of his political asylum in Russia, where he has resided, beyond the reach of US jurisdiction and under legal protection granted by Vladimir Putin personally, for a little over one year. Snowden seems to be settling in for the long haul as a fugitive expatriate.

He is making a mistake. At some point Snowden must return to the US and face the criminal charges pending against him. By postponing this reckoning, he adds to skepticism about his motives. More important, he diminishes his legitimacy as a whistleblower who broke the law to expose government overreaching, change official policy, and vindicate principles of government transparency and individual privacy.

Snowden has portrayed his accessing, copying and distribution (to selected journalists) of NSA records as acts of conscience-and so they may have been. Civil disobedience is a time-honored form of protest, particularly in a democracy. But civil disobedience is not painless; it is not a get-out-of-jail free card.

Civil disobedience assumes-in fact, requires-submission to legal processes: to trial and possible punishment. This, the painful part of civil disobedience, is what distinguishes morally-just protest, on one hand, from mere law-breaking, on the other. Think of Martin Luther King, Jr.

Think also of James Risen, a New York Times reporter who faces sanctions, including jail, for his civil disobedience in defying a court order. Risen has been waging a legal battle to protect his confidential sources for a book revealing classified information on US intelligence operations in Iran. Having appealed all the way to the Supreme Court, to no avail, Risen has run out of legal options (although the Justice Department has hinted that it might back off of enforcing its subpoena demanding Risen's testimony about confidential sources).

Snowden's situation and Risen's are very similar. Both Snowden and Risen are in trouble for disclosing classified information. Snowden has been indicted, while Risen is subject to a court order (that remains intact after multiple appeals). Snowden has fled the country, escaping (at least for now) any legal consequences for his actions. The morally equivalent choice for Risen would be to renege on his promise of confidentiality and to provide sworn testimony to government prosecutors.

The likelihood of Risen, a principled and professional journalist, betraying his source to avoid jail--is zero. For Snowden, too, the moral choice is clear. To legitimize his violations of federal law as acts of conscience, he needs to face the consequences, not run away from them.

If Snowden, instead of going public with his information, had decided to leak his NSA documents on a confidential basis to journalists at The Guardian and the Washington Post, those journalists would today be in the same boat as the New York Times' Risen-under subpoena and facing prison or other serious sanctions for refusing to comply. Why, then, should the expectations be so different for Snowden?

Snowden no doubt fears going to prison. Who wouldn't? But Snowden, if he returned to the US, would receive a trial that is not only fair, but a model of due process. Media interest would be off the charts. That would maximize transparency in all court proceedings--which, in turn, would pressure prosecutors to exercise restraint.

Snowden would have the very best criminal defense lawyers in the country (regardless of his ability to pay them). And those lawyers would make the most of the government's dilemma: having to prove harm to national security, but without revealing sensitive information that could cause still more harm to national security.

Snowden's lawyers will also insist that he cease all public comments. No more press conferences via Skype, no Twitter or email, no calls with reporters. Total silence, giving his lawyers control over his message and image. For Snowden, who clearly loves the sound of his own voice and delights in dealings with the media, such muzzling may be hard to abide. Still, it's not a reason for staying on the lam.

Snowden's unfinished business is in a US courtroom, not a Moscow suburb.
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Peter Scheer is executive director of the nonprofit First Amendment Coalition. The views expressed here are Scheer's alone; they do not necessarily reflect the opinions of FAC's Directors.