THE BLOG
06/26/2013 09:15 am ET Updated Aug 26, 2013

Posturing in the U.S. v. Snowden

Posturing may be exactly what the government is doing in its purported attempt to apprehend and prosecute Edward Snowden.

Filing espionage charges against the young man who's disclosed the unlimited nature of the government's access to our emails and phone records, and the extradition request that followed, sure look like an attempt to punish Mr. Snowden and deter future leaks. As is generally the case in Washington, though, appearance and reality may not be one and the same.

The great irony in this case -- beside the fact that the government responsible for all the warrantless surveillance has accused the whistleblower of spying -- is that Edward Snowden's interest in escaping prosecution is entirely congruent with the interests of the Obama administration in diverting attention from a national security program that makes Richard Nixon and George Bush look like civil libertarians. The last thing Barack Obama wants now is a protracted extradition fight and criminal trial, and the attendant media focus, intensified public disapprobation, and additional leaks and testimony about government excesses that they would entail. The administration understands that Snowden, now a hero to those who oppose the government's unfettered access to our everyday communications, would become either (A) a martyr if convicted and incarcerated or (B) the official victim of a government repression if he wasn't.

You ask what evidence I have, besides motive, that the administration is pulling punches in its attempt to apprehend and try the now 30 year-old leaker. I concede that, without the NSA's access to all communications, I have no emails or phone logs confirming that the administration prefers and purposely helped bring about Snowden's flight from U.S. jurisdiction. I can, however, present what would pass as credible circumstantial evidence in any court.

First, the State Department could have revoked Snowden's passport in order to impede his ability to travel immediately after charges were filed against him on June 14th. For some unexplained reason, as reported in The New York Times, it chose not to for over a week. A mere oversight in a case commanding the DOJ's fullest attention?

Second, the government unsealed the espionage charges on Friday, June 21st, a full three days before it finally rescinded the passport, thereby alerting Snowden that he was officially a fugitive. As Albert Ho, one of Snowden's advisors in Hong Kong, revealed to The Times, the DOJ's disclosure of the charges "prompted his client to become considerably more anxious about staying in Hong Kong." Standard practice, however, is to keep charges under wraps until a defendant is in custody to avoid exactly the sort of reaction that prompted Snowden to flee to Moscow as he searches for a safe haven. Had Snowden not become jittery about remaining in Hong Kong, then, as Ho has revealed, his client would've consulted the US consul general there, a friend of Ho's, about his options. Another oversight?

The Justice Department may have correctly filled in all the blanks on the extradition form -- a matter contested by Hong Kong officials -- but that alone, or in combination with the administration's official protestations, stands for little in the netherworld of geopolitics. Helping facilitate the defendant's self-exile, and all the noise about Russia and Hong Kong's failure to observe the rule of law, may have been the administration's only route between the Scylla of intensified embarrassment and worsening foreign relations and the Charybdis of condoning leaks. As Zha Daojiong, a professor of international relations at Peking University in Beijing put it, Snowden's "departure [from Chinese soil] removes a potential long-term problem in the wider relationship, whatever short-term anger is expressed from the U.S."

While Snowden's apparent escape from U.S. jurisdiction doesn't represent a happy ending for either of the parties in the case of the United States v. Snowden, the government seems to have achieved, sub rosa, the goal of any settlement: it cut its losses. The problem is, as with its secret, unfettered access to our communications in the first place, it seems to have done so through smoke and mirrors under the guise of protecting us.

Jay Sterling Silver is a law professor at St. Thomas University School of Law in Miami Gardens, Florida. His commentary has appeared in The New York Times and other national and local media.