It looks like it’s time for President Obama to call Edward Snowden’s bluff. The fugitive spy has deigned to announce that he is, as summarized by the Associated Press, “willing to be extradited to the United States if the federal government would guarantee he would get a fair trial.” Let Attorney General Lynch inform Mr. Snowden’s lawyers that Congress and all 50 states have agreed to be bound in law to the condition in writing.
General Lynch, moreover, ought to place a certified copy of the agreement under seal with whatever court will be hearing the case against Mr. Snowden. She should announce that a copy of the agreement is available for Mr. Snowden’s inspection when he returns home. She could further announce that the People are prepared to have live television film the proceedings as Mr. Snowden and his attorney unseal the instrument.
It’ll be a grand occasion as they open up the sealed certified copy of the agreement and cast their peepers over the Constitution of the United States. It makes clear that America has been bound for more than 200 years to the provide precisely the kind of fair trial in respect of which Mr. Snowden claims to be prepared face the music. There is no more tested document than this agreement in all the civilized world.
The commitment starts in the Constitution’s third article, which establishes the Supreme Court and authorizes Congress to establish inferior federal courts. It grants judges their offices for life, so that, among other things, their tenure in office is not subject to pressure. It limits — severely — the ability of the government to bring a charge of the crime of treason, going so far as to prohibit Congress from trifling with the definition.
Treason against the United States, it says, may consist “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It adds that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” And that “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
So unambiguous are these strictures that it’s nigh impossible for the government even to accuse Mr. Snowden of treason. It’ll have to make do with lesser crimes, related to theft of government property, unauthorized communication of National Defense Information, and what the publicly available top page of the sealed criminal complaint calls the “willful communication of classified communications intelligence information to an unauthorized person.”
Those crimes are serious enough, but there are plenty of other guarantees in the Constitution to protect young Mr. Snowden. He mayn’t be held to answer for the charges against him unless on a presentment or indictment of a grand jury. He can be put in jeopardy for the same offense but once. He cannot be forced to be a witness against himself, and he mayn’t be deprived of his life or property without due process of law.
Plus, too, he has the right to a trial that’s speedy. He gets to have a jury and the jury is bound by the Constitution to be impartial. It must be impaneled from the state and district where Mr. Snowden’s crimes are alleged to have been committed. That must be a district previously ascertained by law. Mr. Snowden must be informed of the nature and cause of the accusation. He gets to confront any witnesses against him.
On top of all this, Mr. Snowden must be given compulsory process for obtaining witnesses in his favor. Weren’t that enough, too, he gets to have the assistance of counsel for his defense. No court or authority in America may require of Mr. Snowden bail that is “excessive,” and, in the event that he’s convicted, the government may neither impose fines that are excessive nor inflict punishments that are cruel and unusual.
What more does Mr. Snowden want? Via Skype he told a conference in New Hampshire that he wants to be guaranteed a “fair trial where I can make a public interest defense of why this was done and allow a jury to decide.” All of which is covered in our plain reading of the agreement, which more widely known as the Constitution. It’s outrageous for Mr. Snowden to be suggesting, while he’s living under the protection of President Putin, that the Constitution of the United States doesn’t matter. Which is why it is so important to call his bluff.