New York: Sanctified as a crusader, vilified as a traitor, Edward Snowden is living in purgatory. He sits, as of this writing, in a Moscow airport transit lounge, a man without a country.
Snowden should have the courage to come home, to fight in court, under the law. He has damaged his cause by fleeing to China, then to Russia. Why seek refuge in bastions of repression? Why contemplate asylum in Ecuador, a country with one of the worst records on free speech and free press in the Western Hemisphere? Why does he act like a spy on the run from a country he betrayed?
He does his cause no good by hiding. If he stood trial, as Daniel Ellsberg did after leaking the Pentagon Papers, he could try to justify his disclosure of national-security secrets. He conceivably might even win, if only a moral victory.
You may think Snowden stands accused of espionage. He isn’t. The charge is leaking secrets — different from espionage, and more defensible, as a matter of fact and of law. Real spies go to prison forever. He is looking at 10 years.
The law under which he is charged has an ignoble history. The U.S. started its first nationwide domestic surveillance programs under the Espionage Act of 1917, rounding up radicals, wiretapping conversations, opening mail. The act made possession of information that could harm the U.S. punishable by death; imprisonment awaited anyone who would “utter, print, write publish” disloyal ideas.
There were 1,055 people convicted under the Espionage Act during and after World War I. Not one was actually a spy. Most were political dissidents who spoke against the war. Their crimes were words, not deeds.
Eugene V. Debs, the leader of the American Socialist Party, was indicted for speaking out against the law. He had won close to 1 million votes running against President Woodrow Wilson in 1912, but he would conduct his next campaign from prison.
“I believe in the right of free speech, in war as well as in peace,” Debs argued at his trial. “If the Espionage Law finally stands, then the Constitution of the United States is dead.”
The prosecutor, Edwin Wertz of the Justice Department, called Debs a threat to society. His words had inflamed American minds. If he went free, then “a man could go into a crowded theater … and yell ‘fire’ when there was no fire.”
Debs got 10 years. A unanimous Supreme Court upheld the sentence (presidentially commuted two and a half years later). Justice Oliver Wendell Holmes wrote that Debs and the Socialists had used “words that may have all the effect of force.” They created “a clear and present danger” to the nation.
Snowden, if he went to court, could claim that the theater really is on fire. He could argue that the American national-security system is broken. His case is surely an exemplar: How does a high school dropout, no matter his level of information-technology wizardry, gain access to deep secrets of state?
Even in this day and age, a thoughtful judge might echo Justice Potter Stewart on the subject of government secrecy. Stewart ruled with a Supreme Court majority that the government couldn’t stop the New York Times from publishing the Pentagon Papers, a secret history of the Vietnam War, in 1971.
He wrote that “the only effective restraint upon Executive policy and power … may lie in an informed and enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government.” He continued: “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”
One might argue that the Wikileaker-in-chief Julian Assange fits into that last category, by virtue of his conduct over the past year. Most of what Wikileaks leaked was interesting and informative. Much of it wasn’t even classified as secret. Very little was a real threat to American national security.
Assange has strayed into realms of self-protection since then. He sought refuge in the London embassy of the government of Ecuador to fight extradition on a charge of sexual assault lodged in Sweden. Snowden clearly seems to have fallen into his sway. That isn’t a healthy influence.
Snowden has now made a formal request for political asylum in Ecuador, which has new laws that give the government the power to decide whether information published by the press is truthful. President Rafael Correa has prosecuted journalists who criticized him with criminal charges.
This is no country for the cause Snowden has espoused. He had a fight-or-flight moment. He fled. I don’t think he is a traitor. But I do think he may be a coward.
When Ellsberg put the Pentagon Papers into the hands of a reporter he trusted, he fully expected to go to prison for the rest of his life. (He didn’t. President Richard Nixon’s Plumbers broke into his psychiatrist’s office looking for dirt. Case dismissed.) Ellsberg had the courage to fight the government face to face. That is how dissenters win.
Weiner, a former national security correspondent for the New York Times, is the author, most recently, of Enemies: A History of the FBI. He can be emailed at firstname.lastname@example.org.