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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.
And he says Snowden won't. I believe him. What's your point?
If he returns to the US, Snowden will never again see the light of day. Look at what happened to insiders like Thomas Drake (an NSA guy with 30 years in) who developed an analysis tool named "Thin Thread". He added constitutional protections. The NSA removed them. He complained. He was then threatened with 1000 years in prison by Federal Prosecuters (Persecutors?). Included was gag orders on just about everything, constant surveilence, seizure of this computers (home/work/wherever). Wiretaps, harrasment, intimidation, threats of physical violence, physical violence, etc. And he was an inside guy. Then take a look at what happened to the guy who was running Lavabit. Gag orders prohibiting him from talking to his lawyer, gag orders preventing him from talking to anyone, judges imposing arbitrary fines of $5000 per day, he isn't even allowed to see the charges against him! This is sick! The US Constitution is an ideal that the US Government cannot live up to (and they have no intention of trying). If he returned to the US, what would happen to Snowden would best be described as "Punitive, Vindictive, and Arbitrary".
Did you actually read my post? I didn't say he deserves to go to jail. I said that he should get a fair trial, and outlined several scenarios in which he could escape serious prison time despite his admitted guilt.
In another post on this story I say that it's a good thing the American people learn of the government doing things the American people doesn't want them to do. I'm glad Snowden revealed PRISM and programs like it. I'm less glad he revealed details about the NSA doing it's job, like spying on foreigners, but that's another issue.
I happen to believe in trials. So did the founding fathers. The alternative is summary judgement or an assassination. Would you prefer those? Certainly some authoritarians and monarchists do.
-mrxak
Onions Will Kill You
I happen to believe in trials. So did the founding fathers.
Great, that makes three of us. We can start with Clapper and Alexander, since they're easy to apprehend and Snowden isn't. We don't even have to extradite them from Russia or Hong Kong. We can send some Federal marshals to pick them up after breakfast tomorrow. Sound good to you?
At this time, I think any attempt to bring Snowden to trial would ignite a firestorm in this country no matter what verdict was reached. I think that will be the situation for the rest of his life.
There can be no question that he violated USA laws.
But there can also be no question that his actions are bringing pressure to bear on USA agencies to force them to comply with the Constitution. Without those actions, the NSA would continue to run wild as a rogue agency.
I think the only sane way to resolve this mess is to let it alone until Obama's last day in office. Then give Snowden the same kind of Presidential pardon that President Ford gave to President Nixon: a pardon before trial, a pardon before even accusation or indictment. Let Snowden have his passport back, so he could live and move anywhere in the world with the same freedom that any other USA citizen enjoys. But make it clear that he is not welcome to return to the USA, since nothing good could come of that. I would even support paying him a modest annuity on condition that he never return to the USA, and never take any further legal or public action regarding his status. Let him live out his days as, in the view of some persons, a reprehensible outcast in exile. And in the view of other persons, as a patriotic hero whose sacrifices include ostracism from his native land. Let the historians of a hundred years from now be the ones to measure the value of his actions. There is no reason why that has to be done now and there are many reasons why it should not be attempted until all of us are dead.
Will
Clapper openly admitted he lied to congress. Snowden openly admitted to espionage (he may define the term differently, but the law defines what he did as espionage and he admitted to the acts). I think the chances of either getting a trial any time soon is pretty slim. All of this is hypothetical.
I would like to see fair trials for everyone accused of crimes. This is an article about Snowden, so I commented on Snowden. I'm sorry if other people decided that my commenting on-topic has implications about my views about off-topic subjects. If Slashdot has a story tomorrow about government officials admitting to crimes, I will happily say they're guilty too, and should get a fair trial with all the same legal rights that Snowden should get. I think trials are a good thing. I think due process is a good thing. I think our justice system that includes jury nullification, appeals, commutations, and pardons is a good thing. Apparently that offends some people. Who knew?
-mrxak
Onions Will Kill You
I freely admit that there are problems with the system too. But that's a discussion for another topic. I was only here to address specifically this news article. I didn't say anything terribly controversial with my very narrow focus, but unfortunately people decided to imagine my positions on other issues I did not address at all, positions I do not hold.
Geez, a guy can't come out in favor of fair trials without getting called an authoritarian. Who knew?
-mrxak
Onions Will Kill You
The thing is, almost anyone in the current or previous governments is guilty of breaking the same laws that Snowden is accused of breaking. But in a world where everyone is guilty, the prosecutor is the judge. His discretion to prosecute is the ultimate judgement. If you do decide to prosecute, finding the person guilty is only a formality in our current system. Everyone is guilty. There is no discussion, it is no longer possible to live life without breaking any laws.
If programs would be read like poetry, most programmers would be Vogons.