Daniel Ellsberg: Snowden Would Not Get a Fair Trial – and Kerry Is Wrong

Daniel Ellsberg, no slouch himself in bringing to public awareness documents that reveal uncomfortable facts about government operations, says that "Edward Snowden is the greatest patriot whistleblower of our time." Ellsberg says, in an editorial at The Guardian pointed out by reader ABEND (15913), that Snowden cannot receive a fair trial without reform of the Espionage Act. According to Ellsberg, "Snowden would come back home to a jail cell – and not just an ordinary cell-block but isolation in solitary confinement, not just for months like Chelsea Manning but for the rest of his sentence, and probably the rest of his life. His legal adviser, Ben Wizner, told me that he estimates Snowden's chance of being allowed out on bail as zero. (I was out on bond, speaking against the Vietnam war, the whole 23 months I was under indictment). More importantly, the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing. Legal scholars have strongly argued that the US supreme court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense. The Espionage Act, as applied to whistleblowers, violates the First Amendment, is what they're saying. As I know from my own case, even Snowden's own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people." Ellsberg rejects the distinction made by John Kerry in praising Ellsberg's own whistleblowing as patriotic, but Snowden's as cowardly and traitorous.

Comments

Ellsberg got a fair trial

[gelfling]

and never saw a day in prison.

Re:Ellsberg got a fair trial

[tlambert]

and never saw a day in prison.

Not because they didn't want to imprison him; it was due to an activist judge who held that there was such evidentiary misconduct that the case was dismissed.

http://www.washingtonpost.com/...

This was due to the climate immediately following Watergate, where the judiciary had a lot of motive to prove themselves uncorrupt, at least compared to the executive branch of the time.

The current climate is one much of the evidence against Snowden would be considered classified, and therefore not challengeable. The FISA court, the national security letters, and other instruments available for use in shielding against charges of misconduct, and thus preventing such a dismissal, did not exist in Ellsberg's time.

Frankly, Snowden is lucky he initially established, and is successfully maintaining, a high profile, since it makes him less of a target for extraordinary rendition, which had it been used, he would have just disappeared into a black hole somewhere already.

Re:Ellsberg got a fair trial

[Anonymous Coward]

The current climate is one much of the evidence against Snowden would be considered classified, and therefore not challengeable.

Exactly. He'd be sent to one of those rubber-stamp FISA courts that approve blatantly unconstitutional general warrants. There would be no trial, just a guilty verdict, with no evidence presented due to "Classified" and "National Security", and everyone in the courtroom (which would probably just be Snowden, a Judge, and the prosecutor) would be put under a Gag Order, so no information, maybe not even the verdict itself or hell even that there actually was a "trial", would ever reach the public.

Re:Ellsberg got a fair trial

[fleadope]

This is a gross isrepresentation -- Ellsberg states in the article that his trial was not fair:

As I know from my own case, even Snowden's own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.

I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.

But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he "had never heard of a case where a defendant was not permitted to tell the jury why he did what he did." The judge responded: well, you're hearing one now.

And so it has been with every subsequent whistleblower under indictment, and so it would be if Edward Snowden was on trial in an American courtroom now.

In addition, Ellsberg never got a "fair trial"; the charges against him were dismissed for gross misconduct on the part of the government -- see http://www.washingtonpost.com/... for a summary.

Re: Ellsberg got a fair trial

[UltraZelda64]

What's there to learn? That the U.S. government has grown out of control into a corrupt state of bullshit, lies and deceit, where not even the basic guarantees of its own Constitution and human rights of its citizens are upheld? Where you are automatically a criminal until proven innocent (assuming you're even granted a "speedy and fair trial" to pull that one off in the first place)?

The only thing to learn here is just what the extent of this country's corruption is. And that is the only thing I've consistently noticed: that it only goes one way... and that is, it only gets worse.

Re:Ellsberg got a fair trial

[poetmatt]

This is 100% incorrect.

He cannot be guilty under any circumstances, until tried by the laws at hand.

You are just as bad as Kerry and just as unconstitutional in your argument.

Re:Ellsberg got a fair trial

[jelIomizer]

While your basic point seems to be a complete straw man.

Re:Ellsberg got a fair trial

[davydagger]

It was also illegal for Rosa Parks to sit on the bus where she did.

If your arguing you need to respect terrible laws %100 of the time, with no alotment for mitigating circumstances, then you are seriously out of touch with reality.

>Personally, I would like to see Snowden prosecuted for the crimes he's accused of and given a trial by his peers.

you know damn well he'll never been given a fair trial. The attitude of both parties and the government in general for the last 25 years was to milk the system for everything you can get, bend every rule, then hiring some PR hack to convince everyone that its for the better good.

Re:Ellsberg got a fair trial

[Anonymous Coward]

Let's face it though. He is guilty. He admits what he's done. We can argue about what the law should be, but not what the law is. It's illegal to take classified documents like Snowden did, and start giving them away to everybody like Snowden did.

Really? Explain to me, again, what grants Congress the power to censor speech. Just because Congress decrees something doesn't make it law. There's a reason we have a Constitution. It isn't just a piece of paper to look at. It's the basis by which Congress has any power to do anything. Literally, the Constitution creates the Congress. To ignore it or try to usurp it over some common law interpretation of State Secrets or such language is patently absurd. It's just as absurd as if the NSA claimed a copyright on their activities. Any act of that nature would be designed to censor the truth to usurp a democracy.

And before you argue something about troop movements, well, that's possibly treason and is clearly spelled out in the Constitution. ICBM launch codes? They should be quickly replaceable if there's any fear of a leak. Military secrets on designing ICBMs? Should only be given to people you can trust. Really, this whole situation arose precisely because Snowden had every reason to not trust the NSA. Snowden did precisely the right thing. The NSA was/is stupid to be setup with contractors like they were/are. Their actions are whole unAmerican--and God do I feel horrible using such language given how much such has been so heavily abused, but it so wholly fits this situation.

Really, the only thing your whole argument has any weight on is that hypothetically the system is self-correcting and the courts can, through many appeals and over 15 years of trials, finally reach the obvious conclusion that the Espionage Act is wholly unenforceable in law--even though in fact it would be effectively in force for 15+ years and would ruin Snowden's life much more than his current situation. So, yea, you want Snowden to be a martyr upon an altar of government that's so far down the rabbit hole just to teach the American people yet another lesson about how fucked up their country is, as if it weren't blatantly evident when the President and most of Congress is calling for him being lynched.

As another post mentions Rosa Parks, do you really think enough people are willing to do what it takes to overthrow our current corrupt system because they've simply had enough? I'll give you a hint. The Vietnam war didn't cause it to happen and things have actually gotten worse. The hippies became the enforcers.

Snowden was wise to leave. Unfortunately, he wasn't wise enough to disappear to a better locale than Russia (the lesson of US searches and abuses of people who have the US as but a stop over to their final destination should have warned him what would happen).

Re:Ellsberg got a fair trial

[Anubis IV]

His reasons for doing what he did are irrelevant as it pertains to his legal liability.

IANAL, I don't claim to know even the main points of the Espionage Act (nor of law in general), but I will point out that the motive and intent for engaging in a criminal activity actually do matter quite a bit when it comes to the topics of liability and guilt. Suggesting otherwise is just plain wrong.

Consider the simple case of a person killing another person. Was it in self-defense, the result of negligence, or a carefully planned, cold-blooded murder? The first likely wouldn't result in any criminal charges, the second would probably result in manslaughter charges, and the last would almost certainly result in murder charges. Why though? After all, the result was the same, wasn't it? Someone died, and I was the one who did the act that caused it. I may have even been thinking clearly in all three cases.

What about if I shoved a guy in the chest so hard his ribs punctured his lungs? Sound pretty bad, right? Unless I was doing CPR on him, in which case it's not quite so bad after all. Yet the act was the same in both: I pushed his ribs so hard that I caused serious physical harm to him.

The reasons we do things matter. The law quite often recognizes that fact, whether when determining guilt (e.g. self-defense vs. cold-blooded murder) or determining the sentence (e.g. a lawsuit against me for harming that guy will go a lot better if I was being a Good Samaritan towards him than if I was in a fist fight with him). I don't know whether or not they come into play here, and I don't feel comfortable playing armchair lawyer by asserting that they do or don't, but I wanted to point out that these things do matter in broader law, and that they may very well matter here as well.

In the meantime, I'd prefer to talk about how things should be, since I (and I'd wager 99.9% of us) clearly don't know how they are. ;)

Re:Ellsberg got a fair trial

[slashdot_commentator]

And no one will even speak the true threat the NSA poses to the world.

No one rational thinks that Merkel represents a credible ally of Al Queda. Its all about finding out what Merkel is doing, in order to surreptitiously or politically thwart Germany's political or financial actions which the NSA disapproves of. The NSA will undermine the democratically elected will of any nation, all in the name of US "security". Its not the first time the US tried to do this. Just ask Iran and Chile.

Re:Ellsberg got a fair trial

[rahvin112]

Obama did try to close Guantanamo Bay, Congress wrote a law forbidding it and included terms that he had to give congress 30 days notice before a single prisoner could be transferred so that congress could write a new law blocking it. There have already been half a dozen Republican House members that have claimed the president broke the law by negotiating the exchange for the American POW.

Re:Ellsberg got a fair trial

[Creepy]

That's the problem with the Espionage Act of 1917 - it defines espionage as giving any confidential information to anyone that isn't supposed to have it (and yes, in that loosely worded terminology). That means Richard Armitage, likely Dick Cheney, Karl Rove, and Scooter Libby, and someone at the White House for last week's press release of the CIA head in Afghanistan are all guilty of treason.

I really question of whether even Ellsberg would have walked if it weren't for the gross misconduct of evidence gathering (you know Nixon loved his wiretapping). He certainly was guilty of the Espionage Act of 1917. I suspect had he been convicted, a legal battle over the Constitutionality of the act would have ensued, but it was delayed by the case's dismissal. I doubt either the Espionage Act or the Computer Fraud and Abuse Act (which was designed using the Espionage Act as a template) could stand a serious court challenge.

Re:Ellsberg forgets a couple of things

[Anonymous Coward]

"Second, it is almost certain that ALL of that information was given over to the governments of the countries he traveled to.
So the Espionage Act CAN be applied quite easily to Snowden for any classified information given to foreign governments that was not also part of the information leaked to the media"

There is absolutly no evidence of this supposition at all.

Re:For the last time, he is no hero

[king neckbeard]

There are processes in place to deal with law violations committed under the veil of state secrecy

And we also know that those processes don't work, and that going through those processes poses a decent risk of termination or at least crippling your career advancement.

Snowden did not lift a finger for even a moment to follow those processes, electing instead to break the law himself and go straight to the public.

Except we have claims that he actually did go through a lot of those processes without success.

The right to free speech does not include treason, which Snowden is guilty of, without a doubt.

Treason is giving nuclear secrets to the USSR during the Cold War, not making the NSA look like assholes.

Re: Traitor

[CrimsonAvenger]

He isn't a traitor.

Treason is defined in the Constitution (Article 3, Section 3. Learn it, love it, live it), and what he allegedly did doesn't fit the definition.

And this ignoring the fact that a treason conviction requires (according to Article 3, Section 3) two witnesses to the same (treasonous) overt act.

Since there aren't two witnesses to what he did, and what he did does NOT fit the definition of treason, he can't be convicted of treason no matter how hard the Constitutional Scholar tries....

Re:Come on home Ed!

[Anonymous Coward]

He was a visiting lecturer, who only had one lecture - on the subject of Civil Rights. Hardly what one could call a "constitutional scholar".

Re:prosecutions are done on law in place at the ti

[PPH]

According to polls most of the American people do not approve of his actions. And this is a democracy, so that matters.

Its a Constitutional Democracy. So what the mob thinks doesn't make it right. We have a Bill of Rights which Snowden (and others) claim is being violated.

Opinion poll results to the effect that Snowden did wrong point out another problem with him returning: How is he going to get a fair trial with practically every potential juror having read stories (propaganda) about him and having an opinion already?