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Snowden Would Return To US If Government Guarantees Fair Trial (thehill.com)

Posted by whipslash on from the freedom dept.

An anonymous reader writes: Edward Snowden said if the government would guarantee him a fair trial, he would return to the United States. Snowden spoke via Skype from Russia on Saturday at the New Hampshire Liberty Forum, WTOP reported. "I've told the government I would return if they would guarantee a fair trial where I can make a public interest defense of why this was done and allow a jury to decide," Snowden said.

73 of 488 comments (clear)

  1. They might guarantee it... by Anonymous Coward · · Score: 5, Insightful

    But he still wouldn't get it.

    1. Re:They might guarantee it... by Anonymous Coward · · Score: 5, Informative

      That's Assange.

      This is Snowden.

      Different people.

    2. Re:They might guarantee it... by arth1 · · Score: 4, Funny

      That's Assange.

      This is Snowden.

      Different people.

      They're both Bradley Manning, didn't you know?

    3. Re:They might guarantee it... by Anonymous Coward · · Score: 2, Insightful

      The problem is he wants a fair trial, AS DEFINED BY EDWARD SNOWDEN. We can't make up law according to the defendant. If you don't like the law we have now, elect someone else and have it changed.

      If he's making a deal to turn himself in, he can ask for things that the law allows but doesn't require. And the government can always say "No extra promises, we'll take our chances on being able to find you with an extraction team."

    4. Re:They might guarantee it... by Anonymous Coward · · Score: 2, Informative

      Bradley Manning is now trans-gender and is Chelsea Manning

    5. Re:They might guarantee it... by Anonymous Coward · · Score: 5, Insightful

      The problem is he wants a fair trial, AS DEFINED BY EDWARD SNOWDEN. We can't make up law according to the defendant. If you don't like the law we have now, elect someone else and have it changed.

      Oh, the fucking irony of your statement.

      Edward Snowden did what he did because those in power don't like the Rights we have now, and decided to ignore them.

      Given that fact, Mr. Snowden has a hell of a lot better idea as to the definition of a fair trial than our own government does, so I challenge you to now find someone who will provide a more accurate definition.

    6. Re:They might guarantee it... by Marginal+Coward · · Score: 4, Interesting

      Exactly. "Fair," in this context, involves the consistent and systematic application of the law to Snowden's case. The government is already required to do that, so asking for guarantees of fairness really doesn't mean much: they'll either follow the law or break it, regardless of what guarantees they make. "Sure we'll give you a fair trial, yeah, that's the ticket.."

      However, since he evidently doesn't agree with the law, he presumably would deem any consistent and systematic application of it to be "unfair." (BTW, wouldn't it be nice if all of us could ignore any laws we regard as unfair, especially with tax time just around the corner?)

      Therein lies his paradox: unless he is acquitted of all charges, he will believe he has been treated unfairly, ipso facto, QED, de gustibus non disputandum*.

      *I threw in some Latin here to make it sound lawyerly.

    7. Re:They might guarantee it... by NotDrWho · · Score: 5, Insightful

      The problem is he wants a fair trial, AS DEFINED BY EDWARD SNOWDEN.

      I imagine he would define "fair" as in "not held in a secret/closed courtroom, with the press allowed to attend, with a jury of his peers, with his defense being allowed to actually see the evidence against him, etc."

      And, no, he's never going to get all that.

      --
      SJW's don't eliminate discrimination. They just expropriate it for themselves.
    8. Re:They might guarantee it... by BarbaraHudson · · Score: 4, Insightful

      Not necessarily. He has the defense of it being in the public interest, as well as his duty as a citizen to report criminal activity at an international scale.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    9. Re:They might guarantee it... by flopsquad · · Score: 2

      That decision would be appealed by the prosecution as well, but it might start a trend in how higher courts decide.

      Under US criminal law, the prohibition on double jeopardy prevents the prosecution from appealing a jury's decision to acquit*. So if, as you suggest, a nullification-inclined jury were the ones deciding, Snowden would walk**.

      *IANAML, so I can't speak to what the prosecution can/cannot appeal following the verdict in a court-martial under the UCMJ (if Snowden were to somehow end up before a military tribunal rather than a civilian court, even though he was a civilian contractor and not a member of the military).

      **On all counts on which the jury acquitted. There is nothing stopping them from acquitting on the most serious (probably espionage/treason related) charges, but finding him guilty of e.g. unauthorized access or misuse of sensitive information.

      --
      Nothing posted to /. has ever been legal advice, including this.
    10. Re: They might guarantee it... by tranquilidad · · Score: 2

      The sixth amendment to the U.S. Constitution:

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

    11. Re: They might guarantee it... by BarbaraHudson · · Score: 5, Insightful

      You are SO full of shit. The 6th amendment guarantees the right to a criminal trial, including the right to an impartial jury, the right to a lawyer, the right to know who your accusers are, and the right to a speedy trial:

      Amendment VI

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

      The 7th amendment is about civil cases.

      Pretty bad when a Canadian has to correct an American on their own Constitution. Then again, it does tend to happen a lot.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    12. Re:They might guarantee it... by NatasRevol · · Score: 5, Insightful

      The government is already required to do that,

      And he showed that they do NOT actually do that.

      --
      There are two types of people in the world: Those who crave closure
    13. Re:They might guarantee it... by Anonymous Coward · · Score: 3, Informative

      He has the defense of it being in the public interest, as well as his duty as a citizen to report criminal activity at an international scale.

      He is accused under the Espionage Act. He is not allowed to defend or justify his actions. The judge is required to stop any attempt of him to do so and have them stricken from record. The jury is not allowed to take the merit of his actions into account.

      So no: he does not have this defense. That's what his statement concerning a fair trial is about.

    14. Re:They might guarantee it... by Anonymous Coward · · Score: 2, Insightful

      He admitted that he did leak classified documents. The court found what the NSA was doing was overstepping its bounds.

      The catch-22 is that with the Espionage Act as it is currently written, his lawyer is not permitted to raise that second point. And the reason the law was written that way isn't actually so crazy, once you think about it.

      If the existence of the alien spacecraft in Area 51 (to use a ludicrous example) is classified, you cannot argue that the public has a right to know about the aliens in Area 51 in open court. To do so would require that the prosecution and/or its witnesses either confirm or deny the existence of said aliens. Under oath. In open court.

      Suppose you're the government's star witness in the case. "Mr. President, what's up with the aliens?"

      A1: "Well, they don't exist." Defendant is clearly innocent, goes free. (And now the witness has just committed perjury.)
      A2: "I will neither confirm nor deny the existence of any aliens." There remains reasonable doubt that the defendant actually leaked anything of value. Defendant goes free.
      A3: "They exist exactly as described in the secret document that the defendant leaked." Defendant is guilty. (And now the witness must be immediately placed under arrest for leaking classified information.)

    15. Re:They might guarantee it... by sjames · · Score: 3, Insightful

      Or, he might have acted well within the law and you disagree with it. He dropped a dime on the people who were (and still are) breaking the law.

    16. Re:They might guarantee it... by Hardhead_7 · · Score: 3, Informative

      The problem is he wants a fair trial, AS DEFINED BY EDWARD SNOWDEN. We can't make up law according to the defendant. If you don't like the law we have now, elect someone else and have it changed.

      When Daniel Ellsberg leaked the Pentagon Papers, he posted bail and went on news programs. These days, you get thrown into solitary confinement for years before the government decides maybe it'll give you a secret military trial.

    17. Re:They might guarantee it... by BarbaraHudson · · Score: 2

      You're also allowed to appeal a finding of guilt. Like here, where the appeal court ruled that they had been wrongfully convicted. And then there's pardons for convictions under the act, like the one Clinton gave on his last day in office.

      The really big question is, is the Espionage Act even constitutional?

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    18. Re:They might guarantee it... by fredrated · · Score: 2, Informative

      You, sir or madam, are both a fool and an ass.

    19. Re:They might guarantee it... by tnk1 · · Score: 4, Interesting

      Having said that, I think the government might have difficulty trying him under a process which is not transparent. It's not like they can state that the material that he purloined is still actually a secret.

      Admittedly, the US Government tells its clearance holders that they are not permitted to look at classified material, even if it is leaked to the public, but I don't think that sort of dickery will pass in a civilian court.

      I'm not 100% with what Snowden did, but I will become very upset with the government in a way that I was not upset before if they try and run this in any way but a full public jury trial. Yes, there will be parts that will be classified, but in the end, it should not and most likely will not, happen in a Star Chamber.

      And the US Government has something to gain from this too. Did Snowden adequately make use of the internal methods for redress that he had instead of extruding this data illegally? It's easy to assume the government would ignore him and retaliate against him, but since he never actually did anything like that, we can't know. The government has the chance to make the case to those people who are listening, that the internal whistleblower protection is there and it can be demonstrated to actually work. They can argue that he was told of how he could address these concerns legally and where he could do that.

      Of course, the government may not have those methods at all. And then, I think Snowden may get his satisfaction, if not his freedom. As long as he didn't simply decide he couldn't trust the government, but instead, acted out on his own, he has a chance of making his case, and I will be watching that line of argument very closely. I do not believe that he had a right to just release that material, but I can be convinced that he felt he had no choice after exploring the actual options.

      This is, at heart, the only actual defense that Snowden has; that he had a constitutional duty to expose this, and he couldn't do so without violating the trust granted to him by his clearance.

      What the government will have no problem doing is proving damage to the country. The damage to the US is actually quite evident, and I personally deal with it every day when I work with EU customers. A false dichotomy has been set up between the US and its intelligence services, and every other country and its intelligence services. It's like lifting only one rock, but knowing there are ants and things under both. Unless you're a company actively competing with a US company in certain sectors, your data is probably as safe in the hands of a US company as it is in anyone else's. Perhaps cold comfort, but I would like to see the EU's Edward Snowden, because I am quite certain that his or her revelations would be similarly interesting.

    20. Re:They might guarantee it... by Anonymous Coward · · Score: 3, Interesting

      I think that all Snowden looks for is a fair and impartial conviction.

      He won't get it, because the new, improved post-millenium USA doesn't believe in all those old stale ideals like innocent until proven guilty, not using torture, due process and the ability for people to move around the country without restriction.

      If he did, he'd almost be certainly using it as a venue to blow the lid off even more hypocrisies, because regardless of his motives his acts were illegal. Then again, his point wasn't to be legal, it was to be moral and the law doesn't recognize moral.

    21. Re:They might guarantee it... by Anonymous Coward · · Score: 2

      Except that you seem to rather conveniently forget that there were quite a few high level government officials calling for Snowden to go to Gitmo, violating his right to a fair trial.

      He is a U.S. citizen and is entitled to due process. This is no longer a foregone conclusion like it should be since the very people espousing the virtues of the Constitution are the ones violating it the worst.

      Snowden believes that jury nullification would vindicate his actions because he shed light on a lot of blatently illegal activities. This is the Pentagon Papers times a few 10s of thousands in magnitude but is most certainly not being treated as such. It is worse than Iran Contra which arguably started all this crap in the middle east. Yet we vilify the man and prevent him from getting his day in court.

    22. Re:They might guarantee it... by Anonymous Coward · · Score: 3, Insightful

      You're worse than an idiot in that you believe in what you say. No contract can superceed the law - that's the law!
      So if you signed an NDA for your "clearence" and you witness or are a part of criminal activity related to your position
      and duties, you are acting in a criminal matter by following the "contract" and not following the law in those matters.
      You are intentionally causing harm to your fellow Americans for a paycheck.

      Guess you never heard of Agent Orange; or you're too young to care. I've turned down positions (not many, but some)
      where I knew people would be harmed by my actions had I taken those positions.

      I'm very surprised the U.S. hasn't gone full Jared Fogel on Snowden and dug up some "dirt" on him - not to say they
      wouldn't if he returned....

      CAP === 'burped'

    23. Re:They might guarantee it... by SScorpio · · Score: 4, Informative

      In a trial by jury the law does recognize moral acts by way of jury nullification.

      Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act, yet they don't believe he or she should be punished for it. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case

      https://en.wikipedia.org/wiki/Jury_nullification

    24. Re: They might guarantee it... by Marginal+Coward · · Score: 2

      I think you confuse morality with law. Hopefully, the two are harmonious, but they are not necessarily identical. I was specifically addressing the element of law rather than element of morality. The latter is much more subjective than the former, though neither can be judged truly objectively. From what I know of the case, Snowden did indeed break the law. Whether what he did was "moral" or "immoral" is for you and I each to decide for ourselves.

      Of course, it's entirely defensible to assert the position that what he did both was moral and broke the law. For example, I once delibrately ran a stop light in a busy intersection in order to get out of the way of an ambulance with its lights on. I regarded that as both moral and law-breaking. However, I feared no legal consequences because I believed in what I had done so strongly that I felt I could defend any legal challenge to it. Why doesn't Snowden feel the same?

    25. Re:They might guarantee it... by Alypius · · Score: 2

      Exactly right. It's amazing how many people have never heard of the Pentagon Papers or, if they did, make exactly the wrong comparison between Snowden and Ellsberg.

    26. Re: They might guarantee it... by BarbaraHudson · · Score: 4, Funny

      How do you know an AC is American?

      Simple. They don't know the American Constitution. :-)

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    27. Re:They might guarantee it... by larkost · · Score: 4, Informative

      No, if you read the article you will know that his definition of "fair" is that he is allowed to argue, in court, that he was a whistleblower. The last person charged in this manner was bared from even mentioning words that defended themselves in this manner. That does seem particularly unfair to me as well.

    28. Re:They might guarantee it... by shawn2772 · · Score: 2

      The problem is he wants a fair trial, AS DEFINED BY EDWARD SNOWDEN.

      I imagine he would define "fair" as in "not held in a secret/closed courtroom, with the press allowed to attend, with a jury of his peers, with his defense being allowed to actually see the evidence against him, etc."

      And, no, he's never going to get all that.

      And bail. Which should be a slam dunk in a fair courtroom. Since Snowden would have returned voluntarily to have his day in court, the judge shouldn't consider him a flight risk.

    29. Re:They might guarantee it... by Xenx · · Score: 3, Interesting

      Regardless of personal opinion, your assertion is flawed. From the article you linked:

      "In 1988, the Sixth Circuit upheld a jury instruction: "There is no such thing as valid jury nullification." In 'United States v. Thomas (1997), the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law."

      Again, I'm not saying it can't happen and I'm not arguing whether it should or shouldn't. I'm just pointing out that it isn't legally recognized.

    30. Re:They might guarantee it... by Jason+Levine · · Score: 5, Insightful

      There were other whistle blowers before Snowden who tried to get the word out about what happened. They went through the official channels, found themselves charged with "unrelated" crimes, and were told by the judges that they couldn't use "whistle blower" as a defense. These people went to jail and the government overreaches that they tried to report were hushed up and continued happening.

      Snowden knew that the same thing awaited him if he blew the whistle in this manner so he felt his only option was the flee the country while exposing what happened. You might argue about whether what he exposed was valid whistle blowing or whether he stepped over a line, but that's what a trial should determine. The problem is that a lot of powerful people were upset with Snowden revealing their operations. Even if his actions were 100% justified as a whistle blower, the history of treatment of similar whistle blowers doesn't make it look like he'd get anything approaching a fair trial.

      --
      My sci-fi novel, Ghost Thief, is now available from Amazon.com.
    31. Re:They might guarantee it... by KGIII · · Score: 2

      I am not a military lawyer but I did get to work in and around the system. I spent eight years enlisted and a fairly good portion of that was as a chaser/escort. I got to know the UCMJ fairly well. I'd not say that I'm fluent or all knowing, however. So, take this as a grain of salt and the above is just to give you an indicator of what experience I have.

      He should not end up in a military courtroom, at all. He was a civilian contractor, not directly engaged in military activity, and it would be hard to argue that he was directly engaged. I believe there's an exception that allows private citizens to be face court martial but only if they're directly involved in the military/military function. The burden is, as I recollect, "would this have been done by military personnel otherwise?"

      That's actually a bit of a burden. In this case, my non-lawyerly opinion is that no - this would not have been a job assigned a uniformed employee of the US Gov rep specifically from the DoD. If they tried to try it there, I don't expect it would get past the first hurdle. One of the very first facts they discover is, "Is this person subject to this court?" I'm thinking the answer is no.

      Now, I could be wrong... I've been wrong before. Actually, I thought I was wrong once, but I was mistaken. I'm definitely not an authoritative source but I'm probably a bit more likely to be correct than wild speculation and guessing. I could go look it up but I'm actually lazy again today. I've a good deal of familiarity with the justice system and some experience in the military justice arena but that's it. I *think* that's how it works. I'm pretty sure, at any rate. It has been a very long time.

      To add some perspective... Other than a bit at the end, this is mostly gibberish below this point:

      I've never gone through the process myself but I've handled a number of detainees who were going through the process. I've stood (or sat) through many hearings and procedures. I was the guy who was responsible for ensuring that my charge was present and safe. I know, factually, that one of the very first steps is ensuring the identity and the power of the court over the defendant. I've even dealt with multiple parties who ended up *not* being under the purview of the military justice system but needed to be tried by civilian courts.

      More often than not, I drove detainees around and then kept them company while in court. I was the rather unusual sort that was allowed to go armed into a court room - and that even includes bringing a detainee into civilian courts. No, you can not take my ward from me. My role was not just to protect people from the people in my care but it was also to protect the people in my care from those who might do them harm. (It's a long story but I had an incident where I was not allowed in the civilian courtroom while armed. My prisoner and I left. I will not put my prisoner, in handcuffs, in a room full of angry people while not being able to ensure a reasonable level of security for my prisoner.)

      An interesting (to me) aside is the stark differences. Snowden might be better off in a military facility. We had a just before the Sally Port to the secure facility, it read: "There, but by the grace of God, go I." I was trained to but did not generally work inside the facility - except to do retrieval and drop-off and the security elements that entails. I later interviewed at a civilian detention facility up in Mass because I wanted a job to help pay for school. I can't even begin to describe the differences. In a military detention facility, there's respect for the prisoners - firm but fair. There's respect, they'll kill you if it's not there. There's also respect from the prisoners. You go to prison as punishment, not to be punished. Your punishment is your lost freedom, there's nothing greater than that except your life.

      I saw nothing of the sort in a civilian (going nameless here) facility. I don't know who I'd have disliked more. I might have hated the staff as much as I hated the inmat

      --
      "So long and thanks for all the fish."
    32. Re:They might guarantee it... by tnk1 · · Score: 2

      Yup, I know, which is why I pointed that out. I know a few clearance holders who definitely do not want to hear the details for the same reason.

      However, that is not the majority of the population, and ultimately, they will not be able to make that the reason for some sort of secret trial. There will be things we can't see publicly, but that can be handled in a normal court.

      The question is whether the US government will bother making those assurances. Even money is on them not bothering. They don't care if he comes back, he's already in exile in Russia. Russia isn't the Soviet Union anymore, but I don't think I'd want to settle there permanently. It's sort of like jail without having to pay for him. And many exiles do come back eventually without so much as a deal with the government once they tire of being out in the cold for so long.

      If I was President, I'd probably shrug and leave the usual channels open for extradition, but in the end, I'd ignore him. He's already done what damage he's going to do. What kind of deal do I have to make with him? He comes home for his trial unconditionally, or he can feel free to stay in Russia.

      Also, he needs to remember to file his Income Tax return.

    33. Re:They might guarantee it... by Aighearach · · Score: 3, Interesting

      He doesn't even have an argument for what would be "unfair" about the trail.

      It is one thing to disagree about what the law should be, but what a fair trail is isn't that controversial. There are no mainstream arguments that people in the US who are high profile and have access to their choice of lawyers don't get fair trails. That is just silly-talk.

      Obviously poor people and minorities often don't get fair trials unless it is high profile, but that isn't Snowden's situation.

      He engaged in civil disobedience. Believing you were right to do it does not mean not experiencing the consequences of those acts. When people block a street or engage in a sit-in blocking a lunch counter, they know they will have to serve the time or pay the fine or whatever. A "fair trial" doesn't mean, "if the jury is glad I did it, then I'm not guilty." A trial is to determine if you are guilty of the crime, it is not a popularity contest to decide if the jury still likes you, or if the crime had some happy outcome.

      He is like a giant flamebait begging idiots to hang their hats on his crazy argument simply because they dislike the NSA. But you can be against government over-reach and still know what a "fair trail" is. He'd be better off trying to negotiate getting a minimum security white collar prison assignment. Then his supporters could advocate for reduction or commutation of his sentence, something actual possible to receive if the right people agree. Much better than now, where he is constantly asking his supporters to fight for impossible demands.

    34. Re:They might guarantee it... by Aighearach · · Score: 2

      He isn't accused of Treason, and it isn't because he didn't help the enemy. Treason isn't helping any enemy at the same time as there being a war, you have to help the actual enemy that is the target of the war. He didn't do that specifically. His crime is related to sharing classified documents, including with various enemies, separately from any war or war effort. Specifically, he is accused of violating the espionage act.

    35. Re:They might guarantee it... by Aighearach · · Score: 3, Informative

      There is in fact on ongoing war, legally.

      https://en.wikipedia.org/wiki/...

      You don't have to like it, but we are still at war.

      People who whine and cry about not having "declared" war are directed to Section 2(b)(1) which clarifies that it is in fact a declaration of war:

      (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

      The reason to believe it is not Treason is simply that he is not charged with Treason, he is charged with violating the Espionage Act by "unauthorized communication of national defense information" and "willful communication of classified communications intelligence information to an unauthorized person" neither of which have anything to do with wars.

    36. Re:They might guarantee it... by alexgieg · · Score: 5, Interesting

      Try as I might, it's hard for me to see Snowden or anyone else who explicitly breaks their word as any sort of hero or candidate for Giver of Law.

      There are three main schools of thought on what constitutes a moral act: a) doing what's right in itself irrespective of the consequences, a.k.a. Virtue Ethics; b) obeying and fulfilling your duties irrespective of the consequences, a.k.a. Deontology; c) doing what will result in the best outcome for the most people irrespective of concepts of virtue or duty, a.k.a. Consequentialism.

      It seem clear you subscribe to Deontology. You feel that once you promise and accept a duty, the moral path is to do as you promised and fulfill that duty, otherwise what might happen if everyone began ignoring their word and doing what they feel is right or feel provided the best outcome?

      The problem with Deontology is that it only works well (from the other two ethical perspectives) if the duties being fulfilled are themselves virtuous and/or if they provide the best outcome for the majority. For example, let's say you subscribe to the duty of always saying the truth, otherwise what would happen if everyone were free to lie. That's all fine and nice in a good society. In a fascist society however, it leads to telling the SS the truth about those Jews hidden in the third house down the road.

      Snowden evidently isn't a Deontologist. He's either a Virtue Ethicist, thinking that bringing evil to light is a good in itself and nothing else matters, or a Consequentialist, thinking that by bringing these facts to light the state of the world will improve for the majority.

      Now, here's the fun thing: opting for either of these three ethical frameworks is arbitrary. There's no criteria by which one can objectively conclude one is better than the other. In this it's like religion: you either believe in this, or in that, or in the other, or even in neither.

      The we have a second set of criteria: is Law something people create, or discover?

      Those who think it's a creation, called Legal Positivists, are usually Deontologists (strong belief in this, almost no belief in exceptions) or Consequentialists (weak belief in this, open to lots of exceptions), and think basically anything goes. Virtue Ethicists, on the other hand, believe Law is discovered, and therefore that you can have laws in the book that are either valid because they express a Natural Law that preexists any human writing it down, or that are invalid because they don't, and then the fact they were written down by someone to be meaningless. Legal Naturalism is a tradition that goes back to Plato and Aristotle, who both wrote on the distinction between true and fake laws.

      Since you're a Deontologist, it seems to me you're very likely to also be a Legal Positivist. The law that one must obey is what's in the books, and that's it. Snowden, evidently, disagree, and most everyone who looks at any law and thinks "this is unjust".

      And then we have a third sect of criteria: that of the psychological way people think about justice questions. There are six approaches to this, in a scale psychologist Lawrence Kohlberg identified in the 1960's. Here, the important point is that "law agreed upon by different groups as the source of justice and the means by which they don't fight each other" is a strong belief of those fitting what Kohlberg identified as the 4th stage in the scale: "Law and order morality".

      Now, I cannot say in which stage Snowden is, but it wouldn't surprise me if he were at stage 5. In stage 5, "Social contract orientation", justice rises from the agreement of individuals, an agreement that can change over time but must be construed by them explicitly as individuals, and not as members (real or perceived) of groups seen as single blocks. As a "stage 5" then, Snowden would find that hidden laws and hidden rules (which are okay from the perspective of stage 4) are something that doesn't provide for true democracy, and decided to put pressure into making things move up.

      As you can see then, there are several ways by which Snowden can indeed be seen as someone doing right, even if from your perspective what he did was anything but.

      --
      Conservatism: (n.) love of the existing evils. Liberalism: (n.) desire to substitute new evils for the existing ones.
    37. Re:They might guarantee it... by Aighearach · · Score: 2

      "Peers" in that context means a person with the same legal rights and status based on caste. Since US law is based on English law, that means that a noble has to be tried by a jury of nobles, a commoner by a jury of commoners. In the US we are all equal under the law, we have no nobles, so it merely means that a person is tried by persons.

      Americans are often confused about this, because we don't normally encounter the word "peer" except in the context of "peer pressure" or the "respect of their peers," or some such social, non-caste-based phrasing.

      http://criminal.findlaw.com/cr...

    38. Re:They might guarantee it... by Aighearach · · Score: 4, Insightful

      Bail is a bit of a "slam dunk" if you already fled to multiple countries to evade capture. As in, a slam dunk for the prosecution. ;)

      That requires some really exceptional magical thinking to get to, "well he already fled so if he comes back he's not a flight risk." No, if he already fled then he is a proven flight risk even if you believe that he won't fly this time.

      If you're wanting to negotiate your surrender, pre-trial release is not a reasonable thing to demand. That is just daffy.

    39. Re:They might guarantee it... by Jason+Levine · · Score: 4, Insightful

      The problem is that there are official channels that Snowden was "supposed" to have used to report what he found, but other people who used the official channels wound up prosecuted for daring to report what they found. When you make an official channel and then attack anyone who uses it, you shouldn't be surprised when people don't use the official channels. You can't hold up an official channel as a valid alternative if people don't feel safe using it.

      Let's assume for a moment that Snowden's revelations were of criminal government overreach of power (setting aside, for the moment, whether his reveals compromised non-US-citizen spying efforts since that's a different discussion), how should he have proceeded? Just put his head down and ignore what was going on because that was his orders? Try the official channels figuring that his fate would be different than all of the other people who used them?

      --
      My sci-fi novel, Ghost Thief, is now available from Amazon.com.
    40. Re:They might guarantee it... by Prune · · Score: 2

      It's highly doubtful that anyone can be consistently in Kohlberg's stage 5 (and certainly no one is in 6). It just runs counter to what we know from evolutionary psychology, as well as common sense. Often people try to make the argument that full-blown altruism exists and has been able to arise because evolution can happen on the scale of groups rather than just individuals (or, more precisely, individual genes), but these theories have never played out outside simplified computer models. The selection pressure even in as social species as humans is overwhelmingly biased towards individuals and closest relations, falling off very quickly with genealogical separation. While in modern society individuals have far more vast influences, potentially affecting much of the world, this has only been the case for a time multiple orders of magnitude shorter than what is needed to see any effect on our biology. Indeed, there remains a significant source of selection pressure against the top two of Kohlberg's levels: altruism leaves its adherents very vulnerable to exploit by selfish individuals (the flip side of this coin is that psychopathy is an effective strategy as long as the frequency of its occurrence is low enough, which explains the fairly consistent 1% rate; this is analogous to the sexual selection pressures that result in a minority of "alpha" males). A discussion about these issues in the context of Kohlberg's stages can be found at http://www.sfu.ca/psyc/faculty...

      --
      "Politicians and diapers must be changed often, and for the same reason."
    41. Re:They might guarantee it... by suutar · · Score: 3, Informative

      ... in the sixth circuit.

    42. Re:They might guarantee it... by alexgieg · · Score: 2

      The text is quite interesting. I haven't read it in full, but I'll do so in the next few days. Thanks! :-)

      As for evolutionary psychology vs. Kohlberg, I don't think this is that straightforward. EP is still evolving, and concepts change a lot in there, it's far from a settled area of study. Evidently, attempts such as this one are quite helpful in reaching that stage someday. But my point is that Kohlberg is psychometrically sound, and finding people in stage 5, while rare, is something that does happen. Sure, it's just 5% or so of the population, and probably only a subset of those are full time at 5, but still it isn't impossible. Stage 6 is a whole different thing, but even so, there are people who do find themselves in it now and then. Way less than 1% of the population for sure, but still some do, some of the time.

      I should also point out that being at a given stage doesn't necessarily mean being altruistic. Being at 5, it means that you think in terms of individuals. Does this lead to altruism? I guess there's a strong correlation, but not necessarily causation. What a stage 5 cannot do is simply to look at someone and think in terms of "a typical x", with "x" being "black", "woman", "French", "jock", "scientist" etc. At stage 5 you're permanently aware everyone is an individual, no exceptions, but that's about it. In terms of closely caring for every single one, that wouldn't happen because you're still limited by your Dunbar's number.

      In any case, it's important to note that brains are complicated, and the fact stages 5 (sporadically) 6 exist doesn't necessarily have to come as the result of evolutionary pressure, but as a side effect of this complexity. It well might be that evolutionarily they persist because they aren't detrimental, and also because stages 5+ tend to develop later in life, usually after the individual already reproduced, so their offspring simply inherits the potential for the trait and carries it on, keeping it present in the population.

      Oh, it this is a good thing insofar as new genetic engineering techniques develop. Who knows? Maybe someday well be able to tap into whatever causes stage to develop among those few 35+ years old where it appears more consistently, and trigger its appearance by design. If that happens the world will become a much nice place. :-)

      --
      Conservatism: (n.) love of the existing evils. Liberalism: (n.) desire to substitute new evils for the existing ones.
  2. Still a bad idea by Anonymous Coward · · Score: 5, Insightful

    The US works hard to ensure that Fully Informed (of their right to vote based on conscience rather than facts) jurors are pretty much banned. If you show any signs of being fully informed, you will never be a juror. Easiest way out of jury duty, if you wanted out of it, to be honest, and no worries about penalties either. Just show up and loudly proclaim "I believe in my right to vote not guilty to stop a bad law". You'll never have to show up again, and might even get to leave early.

    1. Re:Still a bad idea by PolygamousRanchKid+ · · Score: 5, Insightful

      My father got called up for jury duty once. He was asked what his profession was. He said he was an electrical engineer working for RCA. Both the District Attorney and the defense attorney wanted him tossed out. My father told me that anyone with half a brain got tossed of the potential jury pool.

      There's your fair trial for you . . .

      --
      Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
  3. Re:Can't you just stay in Russia and STFU by Anonymous Coward · · Score: 3, Insightful

    Trump is real? I thought it was only make-believe monster tales created by the American media.

    Signed,
    a Canadian.

  4. They Could Get The Pope To Assure Him by zenlessyank · · Score: 5, Insightful

    And I still wouldn't believe them. There is no such thing as a fair trial when the US Govt. is involved. They will hang you, shoot you, or put you to sleep. I understand you are homesick, but that ship has sailed. Unless they offer to make you president, just stay in Russia.

  5. Not a good idea by robinsonne · · Score: 5, Insightful

    A "fair trial" for him ends with him in prison for life, or worse. Stay in Russia and enjoy what little freedom you have Mr. Snowden.

    1. Re:Not a good idea by Anonymous Coward · · Score: 2, Interesting

      Maybe he understands that freedom is not simply an object of enjoyment, but also intrinsically worthy of the struggle towards it, and not just for himself but also for everyone else?

  6. Re:Fair trial? by Anonymous Coward · · Score: 5, Insightful

    Does anyone believe anyone can get a fair trial in the US?

    The US has the **worst** justice system in the world. Nobody gets any type of "fair trial" here unless you're a white male at the head of a corporation.

    That's a bold statement.

    China just illegally extradited 5 people from Hong Kong (1 nation, 2 systems agreement does not allow for intelligence agencies to extradite citizens) for running a "banned book" publishing site because they were about to publish something awful against President Xi. One of those people was a British citizen. THey are now making public confessions on Chinese State media. http://www.newyorker.com/news/daily-comment/the-case-of-the-missing-hong-kong-book-publishers

    Egypt just gave a book publisher 2 years in prison for publishing "sexually explicit material" because some guy read his novel and got heart palpitations and a drop in blood pressure. http://www.cnn.com/2016/02/21/africa/egypt-author-sentenced/index.html

    Iran executes people for being gay. http://observer.com/2015/05/how-iran-solved-its-gay-marriage-problem/

    You're a bit out of line claiming the US has the worst justice system in the world.

  7. Nope. by Anonymous Coward · · Score: 5, Informative

    Espionage Act it is. The only defense allowed being "I didn't do it". Which would be rather ridiculous.

    And judge and jury only get to decide "did he do it?".

    There is nothing in store for Edward Snowden but a sham trial with hardwired "Guilty" verdict. The U.S. won't clean up their ridiculous laws allowing the government to get predetermined results when they really want it. Most certainly not in order to benefit Snowden or any old whistleblower;.

  8. I don't think that's how trials work by damn_registrars · · Score: 2, Interesting

    IANAL, but my understanding of criminal trials is that the accused - not the law - is on trial. My understanding is that the jury needs to decide whether or not the state presented a solid argument for the accused having committed the offense(s) they are accused of. I am not aware of a situation where the jury is tasked with evaluating the validity of the law under which the accused is charged.

    I'm not saying that the acts of the NSA were justified or constitutional, I'm just saying that the criminal case against Snowden is not the place where that is to be evaluated.

    --
    Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.
    1. Re:I don't think that's how trials work by Anonymous Coward · · Score: 5, Informative

      It's called jury nullification, and the legal system really, really, really doesn't like it, even though its totally a thing.

    2. Re:I don't think that's how trials work by JimSadler · · Score: 2

      Every jury has to judge the quality of a law as well as the consequences of punishments. There are moral outrages in our system. There are actually people serving life with no hope of parole who have done next to nothing wrong at all. There are people serving very long sentences who had cops plant evidence to bury them alive. Recently a man was released who had spent 40 years in an isolation cell in Louisiana. Cruel and unusual punishment leaps to mind. Here is why laws sometimes need to be ignored. Louisiana is listed as a state that applies torture due to the wretched conditions in their prisons. Amnesty International has listed them that way for decades. There was a prison riot in which a guard was killed. Three of those inmates were given life sentences although God only knows who did what in that prison riot. So the man was thrown into an isolation cell where they intended to keep him until he died. Lawyers got him released. Now imagine a man and just what such a man might do after being in isolation for 40 years. How much rage might a man carry after being mistreated in a very evil prison system and rioting, trying to preserve his basic human rights and needs and then being tossed into isolation for 40 years. And to put the frosting on the cake he had to agree to a plea stating that he had guilt to lesser charges in order to be released. By admitting some guilt the state gets away from having to pay him for being tortured all those miserable years.

    3. Re:I don't think that's how trials work by fnj · · Score: 3, Insightful

      For pete's sake, inform yourself. Prosecutors and judges try to railroad jurors by lying to them about their powers and duties all the time, but the truth is that a jury, once empaneled, is completely free to reach a finding of not guilty for ANY REASON, and it does not have to reveal what that reason is. A jury's responsibility is awesome, and its power of decision is absolute. That decision cannot be invalidated just because the judge disagrees with it, or disagrees with the process used.

    4. Re:I don't think that's how trials work by sjames · · Score: 3, Insightful

      Look up jury nullification. It is deeply embedded in common law (The U.S. has common law) and has on more than one occasion been used to prevent a miscarriage of justice.

      On a more practical level, there is no way to stop it while offering a fair trial. The judge is not entitled to hear the jury's deliberation and may not direct the jury to give a guilty verdict (including by threatening punishment).

  9. Republican candidates missed a chance by MikeRT · · Score: 2, Interesting

    Offer him a fair trial with a standing executive order that says that the Attorney General must conduct an after the fact review of the US Attorney's conduct and bring criminal charges for even the slightest technicality from Brady violations on down. The slightest misconduct and you're fucking crucified by order of the President.

    It would give Snowden no excuse, make us look fair and still accomplish their goal of prosecuting him. They just lacked imagination, I guess.

    1. Re:Republican candidates missed a chance by DewDude · · Score: 2

      They have plenty of imagination. They imagined they're going to execute him as a traitor the moment he steps on US soil; and that's what they set out to do.

      They don't want to give him a trial; they don't want to do anything fairly. In their opinion; he's committed treason against the US....that has a punishment of death. And due to his treason against the US; they will deny him all constitutional rights and there will be no trial. The plane will land, some MP will put a bullet in his head. We will be told there was a struggle and he was shot while being subdued.

      They imagine that all the public will buy this reason; and if they don't...then they're imagining calling those people out as treasonous.

      They have a very healthy imagination; sadly it's only for police-state fascist acts.

  10. Re:More grandstanding by Snowden by Anonymous Coward · · Score: 2, Insightful

    The US Constitution guarantees him a fair trial.

    The U.S. Constitution guarantees a lot that the U.S. government is not willing to grant its citizens. In this case in particular, the Espionage Act under which he is accused denies a fair trial to Snowden. He would not be permitted to defend or justify his actions to the court.

    That's what his statement is about.

  11. Re:Fair trial? by wwphx · · Score: 4, Interesting

    Robert Blake, AKA Baretta, was accused of killing his second wife and was acquitted in criminal court. He was quoted as saying "In the United States, you're innocent until proven broke."

    Like OJ Simpson, he was found guilty in civil court of being liable for her wrongful death.

    --
    When you sympathize with stupidity, you start thinking like an idiot.
  12. Re:More grandstanding by Snowden by mrchaotica · · Score: 5, Insightful

    The US Constitution guarantees him a fair trial.

    The US Constitution guarantees that the NSA would not fucking spy on everyone too, but we all see how that worked out!

    --

    "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

  13. Re:Fair Trials by wonkey_monkey · · Score: 2

    This one might be more relevant.

    --
    systemd is Roko's Basilisk.
  14. Re:More grandstanding by Snowden by BarbaraHudson · · Score: 2

    A fair trial? When a murder conviction against a mentally handicapped man is allowed to stand even though the JUDGE had to keep waking up his public defender lawyer because the lawyer was snoring too loudly? The appeal court said he had a fair trial so it must be true, even though it obviously isn't.

    Or all those murder convictions that get tossed years later because DNA evidence proves it was someone else?

    --
    "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
  15. Re:Can't you just stay in Russia and STFU by bugs2squash · · Score: 2

    Whatever excesses were committed by certain Christian elements The last time we let them get away with it .

    FTFY

    --
    Nullius in verba
  16. Re:Fair trial? by ganjadude · · Score: 2

    thats only the numbers they tell us.....

    --
    have you seen my sig? there are many others like it but none that are the same
  17. Re:More grandstanding by Snowden by Sipper · · Score: 2

    The US Constitution guarantees him a fair trial. This is just grandstanding in the style of Julian Assange.

    Edward Snowden has been charged under the Espionage Act which presents an impossible burden to defend one's self against.
    https://en.wikipedia.org/wiki/...

    This is discussed some by defense lawyers during the movie Citizenfour.
    http://www.imdb.com/title/tt40...

  18. A fair trial means many things by sjbe · · Score: 3, Informative

    Why would you say he wouldn't get a fair trial?

    Because the government was embarrassed by him and has no incentive of any kind to provide a fair trial. Remember that this is the same government that for the last 15 years has been holding people without charges in Cuba because they know the prosecution would lose if it came before a jury or unbiased judge because the government broke the law.

    But the thing is a Fair trial doesn't mean he isn't guilty, it just means they will weigh all the evidence.

    A fair trial also means that if he is guilty that the punishment is proportional to the crime and any mitigating considerations. It means that he would have the right to face his accuser, have all evidence presented publicly and on the record, have an impartial jury of his peers, have the reasons for his actions considered and weighed, to consider whether his actions were reasonable and/or justified, that he has to be convicted beyond a reasonable doubt, that the laws he is being judged by are consistent with the Constitution, that the prosecution isn't withholding evidence, etc. A fair trial means a lot of things. There is no reason to believe the US government has shown the slightest interest in giving Mr Snowden a fair trial based on previous actions and public statements.

  19. Re:Fair trial? ha ha: plea bargains by petes_PoV · · Score: 2

    You're a bit out of line claiming the US has the worst justice system in the world.

    When 97% of federal cases end in plea bargains - i.e. don't get to trial, since the "defendant" chooses <cough> to plead guilty to something, there is something deeply and profoundly wrong. That sort of "guilty" record would generally be an indicator of some of the worst dictatorships the world has seen (along with the other tell-tale: 99% majority in elections).

    So yes, it is fair to say that the one thing the american justice system does not provide is justice

    --
    politicians are like babies' nappies: they should both be changed regularly and for the same reasons
  20. Re:Some thoughts by Anonymous Coward · · Score: 3, Informative

    No, it is not a declared state of war. The US Constitution explicitly states that Congress must declare war. Congress has not declared war since WWII.

  21. What I find disturbing... by slashdot_commentator · · Score: 4, Interesting

    On Saturday, Snowden said some of his former colleagues at the NSA and CIA said "the Constitution doesn't really matter."

    If you don't believe the COTUS really matters, then you don't believe in "the rule of law" and that law must be followed in all situations. What it really means is what people currently in power consider important overrides "the rule of law".

    --
    There is no America. There is no democracy. There is only IBM and AT&T and DuPont, Dow, General Electric, and Exxon
  22. Snowdens comment on why this isn't exactly news by Phoz · · Score: 2, Informative

    Kind of amazing how every time I say this, it gets reported like it's the first time. It's been the same since 2013.

    https://twitter.com/Snowden/st...

  23. You're _not_ always allowed to defend your actions by dlenmn · · Score: 3, Informative

    You're allowed to defend your actions. Plenty of those accused have.

    No, you're not always allowed to defend your actions. Consider Daniel Ellsberg, who leaked top-secret documents in 1971. Here's part of wikipedia's description of the trial:

    Ellsberg tried to claim that the documents were illegally classified to keep them not from an enemy but from the American public. However, that argument was ruled "irrelevant". Ellsberg was silenced before he could begin. According to Ellsberg, his "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".

    That said, the judge eventually dismissed the case because the government broke a number of rules, including wiretapping Ellsberg without a warrant. However, if the government had bothered to follow the rules, you can bet that Ellsberg would be in the slammer because Ellsberg unequivocally violated the Espionage Act of 1917. Although releasing the information was the right thing to do, that simply isn't a legally valid defense. Period.

    Likewise, Snowden has no inherent right to defend his actions, and unless the government did something dumb like illegally wiretap him, Snowden would be found guilty because he unequivocally broke the law (albeit for a good purpose, which is not a legally valid defense). Since the government can get rubber stamp warrants whenever it wants, government investigators may well have complied with the letter of the law. If you define a "fair trial" as a "a trial where the judge enforces the laws as they are written", then short of the government doing something stupid, Snowden be found guilty. I'm not saying that's a good thing (it's not), but thinking otherwise is delusional.

    The fundamental problem here is that the laws are shitty. However, pointing out that the laws are shitty is not a valid defense unless you can prove they're unconstitutional, and for better or worse, the supreme court has blessed the Espionage Act of 1917.

  24. Fair Trial?!?! Reality-Check by Whatchamacallit · · Score: 2

    Snowden broke many laws and confidential secrecy agreements, he put lives at risk, he notified enemies of the state about tactics, methods, and abilities in intelligence gathering. That allowed our enemies to change their tactics to avoid detection and to go after those names that were leaked. Not going to change the fact that he will spend the rest of his life in prison. Any trial that would occur would be purely about him breaking those laws and proving it. It is irrelevant that he uncovered shady government practices proving the spy agencies broke laws (well laws known to be public anyway). He won't be allowed to testify about any of the secrets he stole in a public court. This is intelligence and that game has always been less than legal. Spy agencies break laws, it's what they do and in the real world it is a necessary evil. So there is no way he will get a fair trial because his idea of a fair trial is to put the government on trial during his defense and he simply won't be allowed to do that. He cannot present secret evidence even if it is now public knowledge. In the 1940's he would have had a speedy secret clandestine trial and taken out back and shot by firing squad and his next of kin would have been fed a lie if his body was even returned. Enemies of the USA would have just disappeared him entirely. Maybe sending his personal belongings, teeth, jewelry, and a bit of ash back to the family in a cigar box delivered by a Nazi Youth courier on a bicycle.

    9/11 changed things, the enemy is among us. The spy agencies now have to spy on Americans. The shooter in San Bernardino was an American with an immigrant wife from Pakistan. Americans are traveling to Syria to train and fight with ISIS. Americans are providing material support to terrorists. Enemies are crossing the Mexican and Canadian borders unopposed. Just look at the public list of terror attacks since 2000 (https://en.wikipedia.org/wiki/Terrorism_in_the_United_States#2000s). What do you think they are going to do? Of course they are going to spy on Americans, they have no choice. How many attacks have they prevented or stopped? We may never know...

    Where do I stand on Apple's iPhone encryption? I like the fact that its heavily encrypted to protect my privacy but I hate the fact that terrorists will now use a newer iPhone 6 and up, disabling the finger print scanner, setting a strong password with a wipe after 10 attempts set, utilizing the secure enclave chip, turning off iCloud backup and Find my iPhone features, disabling GPS Location Services, disabling the control center and notifications while locked and using Messages iOS iOS for end to end encryption or maybe a third party app with similar encryption. Apple provides a pretty darn good solution for the terrorists. At the same time, I want that protection for myself but I also want the bad guys to get caught. It's a real world Catch-22 for sure... What's behind all this pressure on Apple? Well the 3 letter agencies are plenty cheesed off they can no longer spy on iOS devices like they used to. I mean a smartphone is a gold mine to them. Imagine turning on the microphone and using it to eavesdrop or obtain your GPS coordinates showing where you have been. The metadata alone is super useful. Snowden revealed they were accessing smartphones at will for quite some time!

    At this point, it is not legal for the government to force Apple to comply there is no law that says they have to comply. The request is not a warrant because obtaining a warrant in this case is going to be difficult. I don't care what anyone says, this is not about one iPhone, not at all. Apple is right, once they do what the government wants it will open up thousands of additional requests and then foreign governments will do the same. Then the government will ask for more, they will want master private keys to iOS Messenger traffic and other encrypted data on iOS and iCloud. That's exactly how corporate America encrypts their systems with a PKI server issuing keys to each user. When a