Is the US right to a trial by jury a conditional right which can be revoked preemptively?

It was my understanding the US Constitution allowed anyone accused of a crime to be judged by a peer jury. However, Edward Snowden would not be allowed to have a jury trial (judge only trial instead).


Also, when are US trials only allowed to occur in secret? Apparently Snowden's trial would not be open to the public, despite the defendants desire to do so.

  • 3
    I am not sure that's what they mean. I think they might mean that, although he would have a public jury trial, he would not be allowed to raise the defense of having released the information in order to reveal misconduct by public officials - simply because the law in question doesn't permit that as a defense. Wikipedia links a WSJ article by Snowden's lawyer, which I suspect may help clarify things (but I haven't read it yet because it's paywalled). Oct 17, 2019 at 12:48
  • 1
    @NateEldredge I edited my question to include a link from The Nation which says Snowden will not be allowed a jury. I'm not familiar with this publication, so I'm assuming the assertion is factually correct. Oct 17, 2019 at 13:23
  • 3
    The Nation is not a legitimate news source. The DOJ cannot deny a request for a jury trial, and the article they link to as a source never suggests that it has or even that it tried to.
    – bdb484
    Oct 17, 2019 at 13:30
  • 2
    @bdb484 There is only a right to a jury trial for a criminal case. If this is the civil case to stop Snowden receiving royalties, the rules are different. Oct 17, 2019 at 17:05
  • 3
    Are you sure the law even applies to someone accused of espionage, betrayal of state secrets, and the like? The USA seem rather comfortable at not applying the law, or human rights, to certain individuals. Did those hundreds (thousands?) of people who pray to the wrong god and maybe made a wrong phone call the wrong day, and since then spend their lives in concentration camps which don't exist at all, except one in Cuba which was closed many years ago get a trial by jury? I don't think they did, and I don't think it bothers anyone from a legal perspective.
    – Damon
    Oct 18, 2019 at 9:42

3 Answers 3


The trial at issue is a civil trial over the publication of his book Permanent Record and the non-disclosure agreement that he signed connected to his employment, see the DoJ announcement, which also notes that this is separate from a future espionage trial. The remedy sought involves no imprisonment. In the US, the constitutional right to a jury trial applies to criminal cases. See the Arpaio case, where cases involving imprisonment of less than 6 months are not subject to the jury trial requirement. The right to a jury trial in civil cases is much more complicated and fact-specific, see this answer. Not yet in evidence is the question of whether his employment agreement included a waiver of jury trial w.r.t. non-disclosure, but one should assume that the government anticipated the scenario that a person would breach the NDA.


  • I think that the NDA being enforced was technically connected to his consulting/service contract (possibly sub-contract), rather than is employment. I am not a lawyer, and so may misunderstand the correct legal terms, but as the owner of a consulting company, we (and our clients) make pretty strong distinctions between what is employment and what is contracting (for both tax and liability reasons). Since Snowden was not an employee of the Federal Government, my understanding is that any NDA being enforced by them on Snowden, must be from a contract with them, not his employer. Oct 18, 2019 at 13:19
  • 3
    What about “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved”? If this is a civil case, and that doesn't apply here, why not? Oct 18, 2019 at 14:22
  • In part because Snowden hasn't answered the complaint. As discussed in law.stackexchange.com/a/17883 trial by jury in civil cases is limited, and see also law.cornell.edu/constitution-conan/amendment-7/…. It is "limited to rights and remedies peculiarly legal in their nature". In this case, the gov't. appears to be seeking equitable relief. Then there is the question of Snowden's waiver. Anyway, despite the 2nd Amendment, felons can't own machine guns, that is, the Bill of Rights is still subject to interpretation.
    – user6726
    Oct 18, 2019 at 15:58
  • 2
    @RBarryYoung Every person getting a security clearance signs an NDA with the United States. The NDA isn’t tied to any service contract; it’s directly between the cleared person and the government and is tied to receiving classified information.
    – cpast
    Oct 20, 2019 at 0:59

A judge only trial (aka a bench trial) is possible in the United States, though it must be requested by the defense (essentially the defense waives its right to trial by jury, in which case the judge acts as both trier of law (his or her usual role) and trier of fact (the jury's usual role).

A court case may be partially sealed so as to discuss evidence of a sensitive nature, such as classified evidence or testimony by a witness whose identity needs to be concealed (i.e. a child or still undercover cop).

I am not finding any source beyond Snowden's statements (either directly or through his legal council) stating that Snowden will have a secret mandatory bench trial, nor can I find anything specific to the Espionage Act that mandates these conditions (in fact, the U.S. has elected to not prosecute some accused violaters because they would have to show classified information in open court). The lone mention of a bench trial was related to the trial of PFC Manning, whose court martial was a bench only trial, but this was due to request by Manning and not a matter of the law itself. Manning's trial did have moments where spectators were asked to leave as classified evidence was going to be discussed, but the trial was followed by the media very closely at the time.

The Manning trial could be where Snowden recieved the idea that he would be in a sealed court bench trial, but it is also likely that he is using it as deception to cover his reason from seeking asylum rather than face charges.

The only other spot of confusion in your link is discussion of the charges being sealed. This happens frequently in the U.S. Federal Court and are used to delay the arrest of the accused for various reasons. I'm unfamiliar with some typical reasons why, but it's not that uncommon for federal prosecutors to unseal charges after they have been approved by a Grand Jury.

EDIT: Following your updates I did some digging:

First, the Nation article links to an NPR article, which sources a book written by Snowden, so the original source is still Snowden. Second, as discussed in the NPR article cited, Snowden is not being denied a trial by jury but rather the jury will not be allowed to hear his defense.

This distinction requires some explanation: In the United States (and common law), intent is not always an element of a crime (some crimes you need to show that the action that was taken was done so with a mindset by the actor such that he intended the actions to be criminal in nature). Usually intent matters in cases of corruption or obstruction of justice (just because you don't tell the cops something important or destroy evidence before they can process it does not mean it's obstruction. You could just be stupid or just not helpful because it's your right to shut up when the cops ask you something. It's only if the un-helpfulness was done in a way where you knew it would conceal a crime being investigated). Violations of the Espionage Act are not an intent based crime, which means you are answerable to it even if you were trying to do something good with it.

Basically, per the NPR article, Snowden wants the jury to consider the reason why he did what he is accused of... which the law doesn't allow him to do. When the jury is given the case, they will be asked to find guilt on the question of "Did he do it?" (which Snowden said he did numerous times) and not "Did he mean well when he did it?" (debatable, but not legally required to be answered to find guilt.).

Intent usually comes into play only in the sentencing phase of the trial, but this phase only starts once the jury says someone is guilty of something. It's here where Snowden will be allowed to testify to the reason why he did what he did, but since he has to be found guilty, this doesn't keep him out of jail... it only lets a judge who is sympathetic give a lesser sentence.

Snowden will be allowed a jury, but he isn't allowed to tell the jury why he thinks it's right or wrong. This is important because the jury does have the power of jury nullification, which is basically allowing the jury to find that the defendant is innocent not because he didn't do it, but because there shouldn't have been a law that criminalizes the action in the first place (it's kind of confusing, but it can possibly overturn the law). However, there is a catch in that the jury must decide this on their own, and neither party may raise the idea up to the jury during a trial as per the rules of the courtroom procedure. Snowden is arguing that he wants to invoke jury nullification in his defense (without saying it, but that is what his argument is) but since he's not allowed to do it, he's claiming he is not being allowed to present his side to the jury.

The whole intent thing is reason behind the famous "I was just following orders" line from the Numberg trials. In German civil law, intent in a crime does come into play in the trial phase, not the sentencing, and in German Law a murder committed without personal motives against the victim is a lesser crime than murder with personal motives. The German soldiers were arguing that they didn't commit the more serious crime accused because they were impersonal with their victims with the "just following orders line". Unfortunately, the trials were being conducted by two countries who used Common Law (U.S., and U.K., which ask "did you do it?" when finding guilt and save "Why?" for after they found it) and the other two countries (France and the Soviet Union) were all too happy to use this system as the French were pissed over the occupation and the Soviets were pissed that anyone was bothering with a trial and not just hanging the Nazis right now (I kid here, but the Germans by and large would rather the U.S. and U.K. handle their surrenders because of their distinct lacking of Stalin any where remotely close to their criminal justice system.).

  • I edited my question to include a link from The Nation asserting the trial would be judged by a judge instead of a jury (against Snowden's wishes). I am not familiar with this publication though, so I'm assuming the assertion is factually correct. Here is the link again. Oct 17, 2019 at 13:27
  • @steampowered: Edited to clarify. Snowden isn't saying he's getting a court mandated jury trial, just that the jury won't hear the defense he wants them to hear and he screwed the pooch on the "I didn't do it" defense when he said, "Guys, I totally did it".
    – hszmv
    Oct 17, 2019 at 14:21
  • That's interesting how the jury wouldn't be allowed to do sentencing. I'm more familiar with the US military courts where the jury does all the sentencing. Based on that I see your point on how Snowden is seeking the Nullificaiton strategy. I guess it worked for the Oregon Occupation trial, so who knows? Oct 17, 2019 at 18:07
  • You appear to be missing a word in or around this phrase in your final sentence "distinct lacking of Stalin any where remotely close to their criminal justice system." Oct 17, 2019 at 20:53
  • 1
    "Violations of the Espionage Act are not an intent based crime" This is not entirely true. It's true that mishandling classified information negligently (i.e. without intent) is still a violation, but such cases are typically not prosecuted. This was explicitly stated by the FBI as the reason that they did not recommend Hillary Clinton be charged, for example. They found ample evidence that she had mishandled highly-classified information on many occasions, but didn't have evidence that it was intentional rather than just extremely negligent. Of course, Snowden's leaks were intentional.
    – reirab
    Oct 18, 2019 at 2:23

Snowden is talking about being denied the right to argue a public interest defense before a jury.

Snowden is being charged under the Espionage Act of 1917, which denies him the right to argue in front of a jury that the public has a right to know that its government is illegally operating a vast, secret and lawless global surveillance regime, also known as a public interest defense. Snowden isn't allowed to make that argument in front of a jury, much less argue that the charges should be thrown out on such a basis.

To Snowden, and many others, that seems like a violation of many fundamental, inalienable, and Constitutional rights, such as the right to a fair trial or freedom speech (which is at its most precious both when speaking out over government overreach and defending oneself before a court of law.)

International norms support the human right to a public interest defense. The UN Human Rights Committee, interpreting the International Covenant of Civil and Political Rights, the world’s farthest-reaching human rights treaty, noted that governments must take “extreme care” to ensure that laws relating to national security are not invoked “to suppress or withhold from the public information of legitimate public interest.”

Additionally, the Johannesburg Principles, adopted since 1995 by international legal experts, stipulate that “No person may be punished on national security grounds for disclosure of information if . . . the public interest in knowing the information outweighs the harm from disclosure.” This principle was reiterated in 2013 in the Tshwane Principles—agreed upon by UN experts, civil society and practitioners around the world. The Tshwane framework outlined in detail specific categories of disclosures, like corruption and human rights abuses, that should be protected.

Significantly, Snowden's disclosures directly resulted in landmark legislation, the auspiciously-named the USA Freedom Act, which regulated and curtailed some of the worst abuses of an otherwise secret and lawless global mass surveillance state.

  • The public interest defense is a very important issue, but I was actually asking about the jury trial issue in my question. Oct 30, 2019 at 16:12

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .