On the Today show and CBS, [Sec. of State John Kerry] said [Edward] Snowden should man up and come back to the United States" to face charges. But John Kerry is wrong. As Snowden told Brian Williams on NBC later that night, ... he would have no chance whatsoever to come home and make his case - in public or in court. Snowden would come back home to a jail cell - and not just an ordinary cell-block but isolation in solitary confinement, ... probably [for] the rest of his life. The current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words "whistleblowing" and "overclassification" in his trial. In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution "need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially." Without reform to the Espionage Act that lets a court hear a public interest defense - or a challenge to the appropriateness of government secrecy in each particular case - Snowden and future Snowdens can and will only be able to "make their case" from outside the United States. Snowden acted in full knowledge of the constitutionally questionable efforts of the Obama administration, in particular, to use the Espionage Act in a way it was never intended by Congress: as the equivalent of a British-type Official Secrets Act criminalizing any and all unauthorized release of classified information.
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