The Corner

Prosecute Snowden

Edward Snowden should go to jail, as quickly and for as long as possible. This is a leak case that should be difficult for even Eric Holder to bungle. Snowden has already confessed in public to the crime of leaking classified information. He has said in public how he did it, that he did it with intent, and that he knowingly harmed our national security. Holder will finally find a leaker that he can prosecute. But given the Holder Justice Department’s record on the other leak cases, who wants to take a bet that Snowden gets a generous plea bargain or even walks?

Snowden might be guilty of espionage, or even treason. If he is telling the truth that he leaked the existence of the PRISM program to inform the American public, then he should turn himself in. A trial would give him the opportunity to explain in public why he broke the law. If he is a spy — it is amazing that someone with such little education and background was given such extensive security clearance — he may well continue running abroad. It is telling that he immediately fled to Hong Kong; one wonders whether he will offer his services and knowledge to the Chinese security services next. 

The NSA leak case will reveal if the Obama administration really means what it said about its foolish and unconstitutional pursuit of the AP and Fox News in other leak cases. Recall that the Obama Justice Department claimed that Fox News reporter James Rosen was a co-conspirator in the alleged leak of classified intelligence. If the Justice Department truly believed what it told the courts when seeking a wiretap on Rosen, then it should indict the reporters and editors for the Washington Post and the Guardian newspapers who published information on PRISM. They clearly “conspired” with Snowden to publish classified information, information that was much more harmful to the national security than in the Rosen case (on North Korea’s predictable response to sanctions). Personally, I think that the Post is protected by the First Amendment, but Holder’s Justice Department clearly doesn’t think so.

So either the Justice Department will indict not just Snowden, but also the Post and Guardian reporters, or it will have been shown to have been untruthful to the courts in the Rosen case (which I think has become clear), in yet another demonstration of this president’s incompetence in managing the core functions of the executive branch or his willful abuse of its executive authorities.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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