Snowden's Lawyer: Leaker Will Not Return Under 'This Regime'

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A protester wearing a mask marches with a sign featuring the likeness of former National Security Agency employee Edward Snowden during the Stop Watching Us Rally. October 26, 2013
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The drama of Edward Snowden began just over a year ago, when the NSA contractor turned whistleblower revealed the U.S. government's vast network of surveillance, from Angela Merkel's Germany to the firms of Silicon Valley. 

The information about the conduct of the U.S. government's electronic espionage has raised Constitutional questions and technological questions. Snowden's revelations have forced the issue of whether the law can ever keep up with communications technology, and whether the government can ever resist the temptation to use technical capabilities it acquires without establishing proper oversight.

In the weeks following Snowden's revelations, federal prosecutors charged Snowden with two felonies under the 1917 Espionage Act and one count of the theft.

Ben Wizner, director of the ACLU Speech, Privacy and Technology Project, is Edward Snowden's legal advisor. At a Core Club event in Manhattan, Wizner discussed the charges Snowden faces and his client's current state of mind.

“He will be back in the United States," Wizner told Takeaway Host John Hockenberry at the Core Club event. "He will not be back in the U.S. to face a trial under this regime. He will be back in the United States when this administration, or the next or the next, understands that the idea of locking away someone who launched a historic global debate is absurd."

Wizner believes that when it comes to Snowden, the approach taken by the U.S. government "will be viewed with astonishment and derision by the rest of the world." He adds that in the end, Snowden will ultimately be seen as a person who changed the course of history.

“I really do think that Snowden is one of these characters that bent history," he said. "In general, history is kind to whistleblowers. History is much less kind to overbroad claims of national security."

Winzer says that one needs to only look to the recent past to see that history favors whistleblowers. 

"Dan Ellsberg walks around with a halo around his head right now, but what was said about him in 1971 made the criticism of Snowden seem like child's play," says Wizner.

When Daniel Ellsberg leaked the Pentagon Papers, many believed his revelations would cause grave and irreversible damage to U.S. national security, with others saying that he was a traitor working for the Soviet Union. 

See Also: Daniel Ellsberg Discusses Snowden's NSA Leaks

"The playbook is the same," says Wizner. "I really do think that Snowden is, and Ellsberg agrees, a far more consequential whistleblower than Ellsberg was. In time, I think the negative views of him are going to go away."

Snowden, The Media and A Public Debate

Though Wizner is unsure when he will return to the United States, he says that under current law, the government's case against Snowden is open and shut.

"The only thing the government needs to show to lock Snowden away for life, incommunicado, is that he knew that the information that he disclosed to journalists was classified, and the he did it willfully," says Wizner. "Everything else is completely irrelevant and inadmissible in a trial. There is no public interest defense, and the government doesn't have to show that the information was properly classified. And that's why Edward Snowden believes and I believe that the smart move for him, if he wanted to contribute to this public debate, was to go not to a lawyer's office, but to an airport."

Remaining a fugitive does not complicate Snowden's legal case—it just impacts his "public case," Wizner says. However, if Snowden had remained here in the United States after his first revelations came to light, Wizner says that there would never be any "public case" at all.

"On day one, he would have been put in a solitary confinement cell, he would have been subject to special administrative measures, and he would not have been able to speak to the press," says Wizner. "This isn't speculation—it's fact. Chelsea Manning, who is already convicted, is categorically prohibited from speaking to any reporter or from even sending a letter to a reporter by the kinds of rules here. And what Edward Snowden knows dwarfs what she knows in terms of classified information."

In May 2013, Snowden began sending documents to journalist Glenn Greenwald and documentary filmmaker Laura Poitras—a calculated decision, according to Wizner.

"His model was going to allow journalists to lead rather than have him lead," says Wizner. "He wants journalists to decide, using the processes that I've outlined—what's in the public interest and what the public should know or not know. He has said very candidly in some interviews, including with TIME Magazine, that he doesn't always agree with the decisions that these journalists are making, on both sides."

According to Wizner, Snowden has at times been frustrated with the pace of the media coverage around these issues, and some of the content being published.

"What he thought he was providing for context they thought was the story," he says. "But he's comfortable with the process that he set up. It is a different one than the one that Wikileaks now advocates—it is not to just put out massive amounts of information and let the world process it and digest it how they will. It is for journalists to lead and make these decisions."

Suspicion First, Search Second?

Snowden believes that the NSA's practices violate the U.S. Constitution, which requires suspicion to come first and a search to come second, says Wizner.

"Because the NSA's and any government's capabilities have grown so quickly, they've essentially flipped that around," says Wizner. "Because they can now collect and store everything, they have come up with a legal regime that permits them to do that. They are arguing in cases in which we're litigating against them, that the Fourth Amendment to the Constitution has nothing to say about the NSA intercepting and storing as many communications of ours as it wants, as long as it leaves it in a digital box."

Wizner says that in order to facilitate the mass collection of data and communications, the NSA is essentially creating a "laboratory for vulnerabilities" by hacking into computers, undermining widely-used encryption systems, and installing malware, among other things.

"Once you've done that, you have opened it up to China, you have opened it up to criminal hackers in Russia that are trying to get your credit card numbers," says Wizner. "Technologists understand this—there is actually a conflict between surveillance and online security. We cannot have both."

Listen to the full interview to hear more from Wizner.