Secretary of State John Kerry said that Edward Snowden should “return home and come back here and stand in our system of justice and make his case.” Kerry seems to have a high opinion of the Department of Justice and the US courts when it comes to national security issues. I can’t imagine for the life of me why. Kerry is either amazingly ignorant or being disingenuous when he suggests that Snowden would be allowed to “make his case” if he returned to the US. No one outside the penal justice system would ever see him again, the moment he set foot here, assuming he was not given a prior deal. He could maybe try to explain himself to the prison guards, assuming they didn’t stick him in solitary. Here are some reasons Mr. Snowden would be unwise to trust himself to that system, given the charges against him:

1. The United Nations Special Rapporteur found that the US was guilty of cruel and inhuman treatment of Chelsea (Bradley) Manning, who was responsible for the Wikileaks and revelations of US killing of unarmed journalists in Iraq. Manning was kept in solitary confinement and isolated 23 hours a day for months on end, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture, on the trumped up pretext that he was suicidal (his psychiatrist disagreed).

2. The Espionage Act under which Snowden would likely be tried is a fascist law from the time when President Woodrow Wilson (like Obama a scholar of the constitution) was trying to take the US into the war, and was used to repeal the First Amendment right of Americans to protest this action. It was used to arbitrarily imprison thousands and is full of unconstitutional provisions. In recent decades the act was used against whistleblowers only three times, but Barack Obama loves it to death. It is an embarrassment that it is still on the books and it reflects extremely badly on Obama and on Eric Holder that they have revived it as a tool against whistleblowing (which is most often a public service).

3. John Kiriakou, who revealed CIA torture under Bush-Cheney, was prevented by the Espionage Act from addressing the jury to explain the intentions behind his actions and therefore forced into a plea bargain. None of the CIA officers who perpetrated the torture or their superiors, who ordered it, have been punished, but Kiriakou is in prison and his family is in danger of losing the house because of the lack of income. The US public deserved to know about the torture rather than having Obama bury it the way he has buried so many other things wrong with the system.

4. National security official such as Snowden are not covered by protections for whistleblowers in the Federal government, as Thomas Drake discovered.Drake helped bring to public attention the National Security Agency abuses that Snowden eventually made more transparent. But he was forced to plea bargain to a charge of misusing government computers. He lost his career and his retirement, for trying to let us know that when faced with a choice between a surveillance system that was indiscriminate and one that was targeted, the US government went indiscriminate. Indiscriminate is unconstitutional.

5. Not only did the US torture Manning, US officials have on many occasions practiced arbitrary arrest and imprisonment and torture. Most often these policies have been enacted abroad, as at Abu Ghraib, Bagram, Guantanamo, and black sites in countries such as Poland. But arbitrary arrest, trigger-happy killings, and extended solitary confinement are all practiced domestically as well, on America’s vast gulag of 2.4 million prisoners, 4/5s of them black or brown. A fourth of all the prisoners in jail in the entire world of 7 billion people are in the United States. At any one time 80,000 US prisoners are in 23-hour-a-day solitary confinement. Abu Ghraib wasn’t a low-level military excess. It was simply the transposition to Iraq of the ideals of an incarcerating society, dedicating to disciplining and interrogating those who fall into the system’s hands. You don’t get these outcomes– a fourth of the world’s prisoners and a small city worth people in solitary confinement by accident. These abuses are systemic, and worsened by the privatization of prisons. John Kerry’s notion that there is a fair trial to be had for Snowden in this cruelly flawed system is bizarre.

Kerry is a bright and informed man and knows all this. I vote for disingenuous. He is just trying to deflect Snowden’s obvious popularity with the public and is trying desperately to keep the NSA warrantless dragnet on us all in place. I remember when he compared the US military in Vietnam to the Mongol hordes. He should take off those big black expensive shiny shoes once in a while. He’d find feet of clay there now.

Juan Cole

Juan R. I. Cole is Richard P. Mitchell Collegiate Professor of History at the University of Michigan. For three and a half decades, he has sought to put the relationship of the West and the Muslim world in historical context, and he has written widely about Egypt, Iran, Iraq, and South Asia. His books include Muhammad: Prophet of Peace Amid the Clash of Empires; The New Arabs: How the Millennial Generation is Changing the Middle East; Engaging the Muslim World; and Napoleon’s Egypt: Invading the Middle East.