The Department of Justice has denied Edward Snowden’s request for a jury trial, calling instead for a closed-door trial in front of a judge—it says that the special procedures necessary for a trial of this sort preclude a jury trial, and that he should not be allowed to mount a “public interest” defense. But neither reasons are consistent with the reason we have jury trials in the first place: to democratically authorize the force of law and punishment at the moment it is most needed. If Snowden is to stand trial, it might be in his best interest—and it is certainly in the interest of our nation—for him to have a jury trial.
Snowden has said that if he’s allowed a jury trial, he’ll “be in court the next day,” and his new memoir, Permanent Record, reads like an elaborate version of the opening statement he hopes to make before a jury. He is eager to tell them that he comes from a family committed to civil and military service, and that his 2013 decision to share classified information about NSA surveillance came out of a sense of patriotic obligation to his country: He believed that the constitutional protections against unlawful search and seizure by the state should apply to personal communications data as well. He thought, at the very least, that there should be widespread public conversation about these tactics. To this end, he recognized his own inability to determine what information should be made public (which required weighing the needs of government secrecy and democratic accountability) and deputized journalists Laura Poitras and Glenn Greenwald to share with reputable news organizations the information he had gathered. There seems to be little dispute over the fact that he violated the terms of his employment and of the protection of classified information, but each step in the process, as Snowden narrates it, was deliberate, considered, and in the service of the public good. This is precisely the explanation that the government does not want a jury to hear or the public to discuss.
While the Constitution ensures a defendant a right to a fair trial with an impartial jury and the presumption of innocence, most espionage cases, such as that of John Kiriakou, who pleaded guilty in 2012 for releasing the name of a CIA operative to a journalist, result in a guilty plea and sentencing by a judge. In these cases, the public is often not aware of the circumstances and motivation of the defendant, and a judge is thought to be better positioned to determine whether the state has met its burden of proof and show that the alleged spy is guilty “beyond a reasonable doubt.”
But Snowden’s case is actually more about civil disobedience than it is about espionage. In cases of civil disobedience, it is relevant how ordinary people understand the tension the defendant experienced between pursuing justice and obeying the law. Moreover, in Snowden’s case, a jury trial is not only a viable alternative to a hearing before a judge; rather, given the nature of the charges—where the defendant has supposedly acted to protect the people from the very state that would charge him with a crime—jury deliberation is the proper forum for discussion of appropriate punishment and is the bulwark against the potential misconduct of the state. The founding fathers saw the potential for tyranny and the corruption of the state, knowing that an erring government could lead to overzealous prosecution and the stifling of dissenting voices. As a remedy they tasked the jury, 12 laypeople not tethered to the court in any way, with the responsibility of ensuring that the law was being applied in an appropriate way. They further empowered the jury to show clemency when the application of the law was misguided. The power of a jury to nullify—that is, to find a defendant not guilty, regardless of the evidence—without rebuke from the rest of the court is a critical aspect of its power. Such a decision may be (1) predicated on the law itself’s being unjust and not worthy of enforcement or (2) based on the particular circumstances of the defendant that make leniency a salient concern.
The Constitution makes no mention of nullification, in part because it was a widely accepted tradition in the Anglo-American system, particularly as embodied in Bushel’s Case, the famous 17th-century trial in which an English jury found William Penn not guilty, much to the dismay of the officers of the court. The judge locked up the jury and withheld food and water from them for two days in the hope that they would change their minds—when they didn’t, he also imposed a fine. A member of the jury contested the punishment, and the high court found that a jury could not be punished on account of the verdict it returned, even when court officials disagreed. This power to nullify is one of the clearest indicators that within the common law tradition, jurors are not merely fact-finders, tallying up the evidence and applying the charge, but adjudicators of justice who legitimate the use of punishment by the state. They must decide whether punishment is warranted in the case, not only whether a law was broken.
Cases of civil disobedience are particularly well-suited for jury trials because they require a balancing of concern for the rule of law and the reality that the furtherance of democratic ideals may require a violation of the law. The Department of Justice does not want to risk a “not guilty” verdict in the Snowden case, fearing the precedent it would set for other civil disobedience cases and the vindication of his actions it would imply. But whether 12 people are convinced that Snowden deserves punishment is a politically meaningful criterion to mete out justice in this case. Moreover, just as he endangered the conspiracy of silence regarding the NSA’s surveillance activities, ultimately checking the power of the state security apparatus, his desire for a jury trial endangers another longstanding “silence,” this time checking the power of the state’s judicial apparatus that without a jury trial, has no direct democratic component.
Currently, in 48 states, jurors are not told of their power to nullify and are, in fact, told not to consider their responsibility beyond determining the facts of the case. It is not hard to see why informing jurors of their right to nullify is controversial: When nullification has been used in the past in the United States, it was often in cases of lynching in the South in which juries seemed to use their power of nullification to acquit white defendants of heinous murder. Mob rule threatens at the edges of every democracy, and skeptics on both the right and the left thus have reasons for wanting to minimize the salience of nullification and obscure potential jurors’ understanding of the discretionary power that they possess. But education, and not secrecy, about nullification is the best strategy for insuring that jurors understand why they have this power and its potential for misuse when grounded in prejudice. A civil disobedience case that involves the release of information, not the taking of life, is more in line with the logic that underlies the power to nullify. In cases of civil disobedience, jurors should determine whether the motivations for the action the defendant has committed are plausible, what the impact on democratic life has been, and how this impact should be weighed against the charges. Officials at the Department of Justice have said that it is not permissible for Snowden to make a “public interest” defense, but this declaration does not invalidate the power of the jury to render the decision that they feel represents justice in this case.
Legally and ethically complex cases such as this one should not render the jury irrelevant, just the opposite. Give Snowden the jury trial to which he is entitled. The passage of time since the revelations would provide the jury additional information about the consequences of his action and the risks it entailed, both for himself and the security of the country. Snowden’s jury may find that the evidence provided by the state does not meet the legal requirements for a guilty verdict; or they might find that the benefits of what he did outweigh the need for punishment; or they might find that despite their sympathy for the reasons he gives, they believe that further punishment is warranted. All are legitimate outcomes, but we must let the jury deliberate.
The issue is not just about Snowden himself; it is about a society that realizes that not all cases of breaking the law are the same and that it is through the iterative process of civil disobedience, jury trial, and public conversation about the legal process that democracies are strengthened.