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Edward Snowden Deserves to Be Tried by a Jury of His Peers, Just Like Everyone Else

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The Department of Justice has denied Edward Snowden’s request for a jury trial, calling instead for a closed-door trial in front of a judge—it says that the special procedures necessary for a trial of this sort preclude a jury trial, and that he should not be allowed to mount a “public interest” defense. But neither reasons are consistent with the reason we have jury trials in the first place: to democratically authorize the force of law and punishment at the moment it is most needed. If Snowden is to stand trial, it might be in his best interest—and it is certainly in the interest of our nation—for him to have a jury trial.

Snowden has said that if he’s allowed a jury trial, he’ll “be in court the next day,” and his new memoir, Permanent Record, reads like an elaborate version of the opening statement he hopes to make before a jury. He is eager to tell them that he comes from a family committed to civil and military service, and that his 2013 decision to share classified information about NSA surveillance came out of a sense of patriotic obligation to his country: He believed that the constitutional protections against unlawful search and seizure by the state should apply to personal communications data as well. He thought, at the very least, that there should be widespread public conversation about these tactics. To this end, he recognized his own inability to determine what information should be made public (which required weighing the needs of government secrecy and democratic accountability) and deputized journalists Laura Poitras and Glenn Greenwald to share with reputable news organizations the information he had gathered. There seems to be little dispute over the fact that he violated the terms of his employment and of the protection of classified information, but each step in the process, as Snowden narrates it, was deliberate, considered, and in the service of the public good. This is precisely the explanation that the government does not want a jury to hear or the public to discuss.

While the Constitution ensures a defendant a right to a fair trial with an impartial jury and the presumption of innocence, most espionage cases, such as that of John Kiriakou, who pleaded guilty in 2012 for releasing the name of a CIA operative to a journalist, result in a guilty plea and sentencing by a judge. In these cases, the public is often not aware of the circumstances and motivation of the defendant, and a judge is thought to be better positioned to determine whether the state has met its burden of proof and show that the alleged spy is guilty “beyond a reasonable doubt.”

But Snowden’s case is actually more about civil disobedience than it is about espionage. In cases of civil disobedience, it is relevant how ordinary people understand the tension the defendant experienced between pursuing justice and obeying the law. Moreover, in Snowden’s case, a jury trial is not only a viable alternative to a hearing before a judge; rather, given the nature of the charges—where the defendant has supposedly acted to protect the people from the very state that would charge him with a crime—jury deliberation is the proper forum for discussion of appropriate punishment and is the bulwark against the potential misconduct of the state. The founding fathers saw the potential for tyranny and the corruption of the state, knowing that an erring government could lead to overzealous prosecution and the stifling of dissenting voices. As a remedy they tasked the jury, 12 laypeople not tethered to the court in any way, with the responsibility of ensuring that the law was being applied in an appropriate way. They further empowered the jury to show clemency when the application of the law was misguided. The power of a jury to nullify—that is, to find a defendant not guilty, regardless of the evidence—without rebuke from the rest of the court is a critical aspect of its power. Such a decision may be (1) predicated on the law itself’s being unjust and not worthy of enforcement or (2) based on the particular circumstances of the defendant that make leniency a salient concern.

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Thanks !

Thanks for sharing this, you are awesome !