Sanctified as a crusader, vilified as a traitor, Edward Snowden is living in purgatory. He sits, as of this writing, in a Moscow airport transit lounge, a man without a country.
Snowden should have the courage to come home, to fight in court, under the law. He has damaged his cause by fleeing to China, then to Russia. Why seek refuge in bastions of repression? Why contemplate asylum in Ecuador, a country with one of the worst records on free speech and free press in the Western Hemisphere? Why does he act like a spy on the run from a country he betrayed?
He does his cause no good by hiding. If he stood trial, as Daniel Ellsberg did after leaking the Pentagon Papers, he could try to justify his disclosure of national-security secrets. He conceivably might even win, if only a moral victory.
You may think Snowden stands accused of espionage. He isn't. The charge is leaking secrets — different from espionage and more defensible, as a matter of fact and of law. Real spies go to prison forever. He is looking at 10 years.
The law under which he is charged has an ignoble history. The United States started its first nationwide domestic surveillance programs under the Espionage Act of 1917, rounding up radicals, wiretapping conversations, opening mail. The act made possession of information that could harm the U.S. punishable by death; imprisonment awaited anyone who would "utter, print, write publish" disloyal ideas.
There were 1,055 people convicted under the Espionage Act during and after World War I. Not one was actually a spy. Most were political dissidents who spoke against the war. Their crimes were words, not deeds.
Eugene V. Debs, the leader of the American Socialist Party, was indicted for speaking out against the law. He had won close to 1 million votes running against President Woodrow Wilson in 1912, but he would conduct his next campaign from prison.
"I believe in the right of free speech, in war as well as in peace," Debs argued at his trial. "If the Espionage Law finally stands, then the Constitution of the United States is dead." The prosecutor, Edwin Wertz of the Justice Department, called Debs a threat to society. His words had inflamed American minds. If he went free, then "a man could go into a crowded theater ... and yell 'fire' when there was no fire."
Debs got 10 years. A unanimous Supreme Court upheld the sentence (presidentially commuted 2? years later). Justice Oliver Wendell Holmes wrote that Debs and the Socialists had used "words that may have all the effect of force." They created "a clear and present danger" to the nation.
Snowden, if he went to court, could claim that the theater really is on fire. He could argue that the American national-security system is broken. His case is surely an exemplar: How does a high school dropout, no matter his level of information-technology wizardry, gain access to deep secrets of state? Even in this day and age, a thoughtful judge might echo Justice Potter Stewart on the subject of government secrecy. Stewart ruled with a Supreme Court majority that the government couldn't stop the New York Times from publishing the Pentagon Papers, a secret history of the Vietnam War, in 1971.