In our second installment of “Communication Breakdown: The Domestic Surveillance Debate,” we sat down with renowned defense attorney, Stanley Arkin. Mr. Arkin has specialized in the defense of business crime cases and is one of the country’s leading trial and appellate advocates. He has been lead counsel in some of the most significant business and securities cases of the last forty years.
In our interview with Mr. Arkin our goal was to better understand the legal implications raised by Edward Snowden’s actions as they pertain to him individually and the nation as a whole.
What are the key legal questions that Edward Snowden’s actions raise?
There are legal questions which exist when one country gives asylum to someone who is clearly a defendant in the United States in a criminal case. The transfer of Mr. Snowden to the United States is governed under international law and international political issues. I suspect that with countries such as Venezuela and Ecuador that we would not have very much success in negotiating Mr. Snowden’s transfer to the United States.
Then he has liability issues: civil liabilities and criminal liabilities. Civil liability I think is inconsequential here because he is never going to be able to pay it. He has simple theft, state or federal, but this will be federal for sure. You start with theft, and you can go through a whole host of statutes that have to do with when you breach a promise or obligation not to disclose what you are doing for our government, then you carry it all the way up to potential treason. Treason is an interesting issue because the question is, who was he treasonous against? Who was he acting for? It is an interesting question because one could say that while he was not acting for some other sovereignty, he was acting for selfish potentially economic or reputational purposes that would be contradictory to this country’s interests.
I would say that he would likely not be prosecuted on treason, but there are many statutes that deal with government security and failure to comply with your obligations as a government employee. He is looking at substantial time in prison.
How would you defend Mr. Snowden?
Due to Mr. Snowden’s frank acknowledgement of what he did and the violation of a contractual oath of secrecy that he took, this would be a very hard case to try. What would be your defense? I was being patriotic, and I individually determined the constitutional issues that I personally have defined override my obligation to US law? I don’t think so.
Defending him in court, absent the notion that there could be a sympathetic eccentric juror; I do not think there is a defense that could persuade most people.
You have to make a deal. The deal you would make would want to take into account as many mitigating circumstances as possible, such as his age, youth, emotional difficulties, etc. I think it would be hard to say that there was no damage. You would emphasize that he thought he was being pure of heart, and that a man can be so foolish and be guilty of a crime without intending to be evil. But when you live in an organized society as we do, it is no justification that you just don’t agree with the law.
How do you expect US Government to intervene in Mr. Snowden’s pursuit of asylum in a foreign nation?
You see our country leveraging its immense power to put pressure on every other country in the world. So it’s a matter of why would a country want to risk messing with the United States just to protect him?
If Venezuela did harbor him, what would they do? Guard him? Put him in a prison? Put him in a hotel and pay his rate? I think Snowden is going to have a hard time. Someone may harbor him just to spite us, but ultimately he is not a good subject for harboring. He does not have enough standing or stature, and most countries do not like what he did, as they would not like it if one of their people did something like this.
If Edward Snowden is returned to the United States, what do you expect the consequences for his actions to be?
Prison. There will probably be a tightening up of how people are vetted at the various kinds of contractors our government uses. He plotted for years to gain access to secure, private and secrete materials to break them open and distribute them. I think that is a bad crime very intentionally done.
In my view, he will probably get north of ten and south of twenty-five years in prison.
Do you think Mr. Snowden’s actions will influence surveillance policies in the future?
I don’t think it is going to change what this country think it needs to do for security purposes. The only other thing that may come of this is substantial discussions in Congress, private think tanks, and media as to if what we are doing is too much, or maybe even too little. I don’t think this will lead to the world having greater transparency. If anything, it may lead to the opposite – it may lead to an overreaction to what he did, compelling a greater need for protection of our secret activities that were all designed to defend the security of the country. I think there are ways we can do that while we still abide by our constitutional mechanisms and culture.
If Mr. Snowden stayed in the United States do you think he could he have achieved his goal of letting the world know about NSA surveillance programs?
No. Had he stayed in the United States he would have not had the opportunity to distribute the materials throughout the world as he did; unless he started doing so secretly, but I think he would have been grabbed up for that. I think leaving the country was part of his design and plan. Had he stayed and not distributed the materials, left his job and made a statement like, “I am not going to reveal these materials, but I feel obliged to tell my fellow citizens of my country and the world that the US engages in surveillance,” he would still be guilty of a variety of criminal statutes and other potential sanctions. I don’t see how he could have stayed here.
If I were his dad, not just a lawyer, I would start negotiating right now. If he starts negotiating and says “I agree to come back if you agree to not do such and such to me” – I don’t know how far that would get him, but that is one way of negotiating.
Do you think that NSA surveillance programs have gone too far in terms of violation of privacy?
I think that we live an extremely dangerous world where terrorism has globalized and we have hard proof of that. You don’t have to stop at September 11th; there have been many subsequent events – take what happened in Boston for example. I think this is a very difficult question because in the name of preventing evil you can do more evil than you were seeking to prevent. I can’t quantify the correct amount of monitoring needed, but it is impossible to think that every phone call or email message is being read by somebody. There is a physically limited form of intrusion based on the sheer volume of phone calls and messages.
I don’t think this country is evil at all. I think we have some evil people as every country does in positions of power. But by in large I think this country and its leaders are looking to do what is right. How you define what is right has to do with the justifiable fear of terrorist acts, but you have to have something closely surrounding that, some sense of process. The fear of terrorism cannot be the justification for every type of intrusion or every type of act. It’s a hard balance.
Stanley S. Arkin is a founding partner of The Arkin Group LLC and Arkin Solbakken LLP, a law firm headquartered in New York. Mr. Arkin received a J.D. cum laude from Harvard Law School (1962) and an AB magna cum laude from the University of Southern California (Phi Beta Kappa). He is a Fellow of the American College of Trial Lawyers, lead author of two books on the prevention of business and Mr. Arkin is a member of the Council on Foreign Relations and numerous professional organizations.