Should Snowden stand trial?

Ever since Edward Snowden fled the United States, calls have come from all ends of the political arena for him to come home, stand trial and do time for his crime. New York Times reporter Tim Weiner, whose reporting on the Pentagon’s secret budget won him the 1988 Pulitzer Prize for National Reporting, has surprisingly condemned Snowden as a coward. Fellow New York Times writer David Brooks even claims that Snowden betrayed honesty, integrity, the Constitution and “the cause of open government” itself. There can be little doubt that these two writers speak for many Americans. 

These arguments are inflammatory—there is no place in intellectual discussion for hasty accusations of cowardice. For many, however, the intuition that Edward Snowden has a moral obligation to return to the United States and stand trial has little to do with Tim Weiner’s idea of cowardice or David Brooks’ vision of national security. It stems instead from an observant appreciation for the American tradition of political activism. When more thoughtful critics look through our nation’s past, they rightly notice that it is littered with protestors who were proud to go to prison for their beliefs. Although the American tradition of imprisoning political dissidents pales in comparison to the practices of some other governments, it is nevertheless difficult to ignore, and it reaches almost as far back as the founding of the country itself. As early as 1798, for example, Rep. Matthew Lyon of Vermont was sent to prison for openly defying the Alien and Sedition Acts, which he did by publicly insulting then-President John Adams. Later, in 1846, Henry David Thoreau spent a night in jail for refusing to pay his taxes on the basis of his opposition to the Mexican War and the practice of slavery. After World War I ended, Eugene V. Debs was imprisoned for having advocated widespread resistance to the military draft. Martin Luther King, Jr. was locked up in 1963 for his peaceful demonstrations in Birmingham, Ala. Perhaps the most relevant case is that of Daniel Ellsberg, who in 1971 faced a prison sentence of up to 115 years for leaking the Pentagon Papers before charges against him were dismissed due to “gross governmental misconduct” and “illegal evidence-gathering.” Looking at a list like that, it’s easy to understand why people sometimes associate incarceration with a deep sense of virtue and legitimacy. 

The Wall Street Journal has even claimed that standing trial is a necessary precondition for effective protest. “Greenwald and Snowden say all they want is an open and honest debate about U.S. and U.K. surveillance practices. By all means let’s have it—and conduct it lawfully.” This, however, is little more than mere assertion. There are plenty of reasons why Glenn Greenwald and Edward Snowden might be justified in conducting this debate outside of the courtroom. For one thing, standing trial is a lot to ask. As Michael Huemer, a professor of philosophy at the University of Colorado-Boulder, points out, we almost never require reassurance from others that they are genuine or morally sincere, even when the costs of demonstrating it would be minimal. “If I have broken the law, I should no doubt prefer that others know that I had virtuous motives for doing so,” Huemer explains in his most recent book, “The Problem of Political Authority.” “But I am not obligated to communicate this information, even if I could do it for free, still less if doing so requires my spending months or years in prison.” Should we really clamor for Edward Snowden, a man who has already sacrificed so much, to risk jail time just so that we can like him a little bit more? 

As those who support Snowden—or those who are at least open-minded enough to consider things from his point of view—probably see, a voluntary surrender might seem out of the question for deeper and more philosophical reasons. Think about it like this: Snowden’s leaks were motivated by his perception that the state’s vast surveillance apparatus represents a fundamentally unjust disregard for the privacy of millions of Americans. Were he then to turn around and submit himself to the state for a spanking, he’d implicitly communicate an absurd and contradictory message. The federal government has no authority to be operating these sorts of global surveillance programs, he’d be saying out of one side of his mouth, but it somehow does have the authority to punish me for revealing and speaking out against them, he’d whisper out of the other. That would be untenable. “If a law is unjust, then the enforcement of that law through the punishment of those who disobey it is also unjust,” Huemer writes. “Why, then, should one facilitate this injustice by submitting oneself for punishment?” Surrender would imply that Snowden has done something wrong and that the government has the right to punish him for it, both of which would go against his message in the first place. It’s possible that Snowden and his supporters are wrong about everything, and that his actions do constitute crimes that deserve to be punished by the government. But his critics should realize that everything he’s done has at the very least been internally consistent. Those who oppose Edward Snowden would do better to abandon insults like “coward” and “traitor,” and try to expose the flaws they see in his logic instead. 

Chris Bassil, Trinity ’12, is currently working in Boston, Mass. His column runs every other Tuesday. Send Chris a message on Twitter @HamsterdamEcon.