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NO DEFENCE? June 13, 2013

Posted by wmmbb in Terrorism Issues, US Politics.

Obviously, I don’t know much about law, but I thought everyone was entitled to present a defence, and regardless of circumstances there was to be a presumption of innocence. Furthermore, the accused’s ultimate fate was at the discretion of the jury. Apparently, none of this applies in the case of Edward Snowden, who supplied information on pervasive information collection by the US Government.

We have this on the authority of Geoffrey R Stone, former dean of the Chicago Law School. He wrote in the Huffington Post:

The problem, and it is a problem that must be taken seriously, is who gets to decide when classified information should be made public? Who gets to put the national security at risk? The solution must be the creation of a clearly defined and credible procedure through which would-be leakers can bring their concerns to an independent panel of experts who can make a formal and professional determination whether the information at issue should be declassified. The absence of such a procedure leaves would-be leakers, who think they are acting heroically, with no recourse but to keep silent or plunge ahead in ignorance, with potentially grievous consequences for the nation.

In the absence of such a procedure, what should Edward Snowden have done? Probably, he should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest. The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.

And in debating the case on Democracy Now, he was similarly categorical. Amy Goodman prefaced his response by quoting Martin Luther King:

“One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

She then asked what defence Edward Snowden might have, to which he answered:

Legally, I don’t think he has—honestly, I don’t think he has any legal arguments that would be a defense to the charge that he violated the law about government contractors not disclosing classified information to persons who are not authorized to receive it. I don’t think he has a defense. Some people commit a crime, and they committed the crime. And I don’t know that there’s any defense sometimes.

. . . on the merits of the charge as they presently—as it presently stands, I think it’s a sentencing question, not a criminality question.

Julian Bogler writing in The Guardian describes the nature of the 1917 Espionage Act, which as he points out was designed for another time, but would be used in the case of Edmund Snowden. After quoting legal opinions, he suggests that Edward Snowden’s best option would be to seek asylum. He writes:

Manning’s treatment while in solitary confinement, which was described by the UN special rapporteur on torture as “cruel, inhuman and degrading”, may now bolster Snowden’s precarious chances of avoiding a US trial altogether by fighting extradition.

“In terms of seeking asylum, Snowden would definitely qualify in terms of fear of persecution,” Radack said. “Bradley Manning would be exhibit A in that argument.”

Allowing that Geoffry Stone is a distinguished legal expert, I think there are problems in what he says. As alluded to by Amy Goodman, the American Civil Liberties Union has undertaken a lawsuit against the government based on the disclosures in the media. Brett Max Kaufman a senior fellow for the ACLU writes:

As an organization that advocates for and litigates to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone—a lot—to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse of Section 215.

The ACLU’s complaint filed today explains that the dragnet surveillance the government is carrying out under Section 215 infringes upon the ACLU’s First Amendment rights, including the twin liberties of free expression and free association. The nature of the ACLU’s work—in areas like access to reproductive services, racial discrimination, the rights of immigrants, national security, and more—means that many of the people who call the ACLU wish to keep their contact with the organization confidential. Yet if the government is collecting a vast trove of ACLU phone records—and it has reportedly been doing so for as long as seven years—many people may reasonably think twice before communicating with us.

The kind of personal-data aggregation accomplished through Section 215 also constitutes an unreasonable search and seizure under the Fourth Amendment. Last year, in a case on GPS tracking by police, five members of the Supreme Court indicated support for the common-sense notion that government collection of individual bits of seemingly innocuous personal information over a long period of time could amount to such a complete invasion of privacy that it would be unconstitutional. The surveillance program that came to light with the release of the FISC order constitutes precisely that kind of unreasonable incursion into Americans’ private lives.

Finally, the ACLU’s complaint charges that the executive branch’s use of Section 215 violates the plain language of the statute itself. The statute requires that records seized under its authority be “relevant” to an authorized foreign-intelligence or terrorism investigation. But while that language imposes a real limitation on when the government can use Section 215, the FISC order covering all VBNS customers demonstrates that this “relevance” restraint is shockingly inadequate. Similarly, the FISC order shows that the government—with the FISC’s secret approval—is acquiring future records of telephone subscribers based on the same “relevance” requirement, even though the statute uses words that clearly show it was only meant to cover “tangible things” already in existence.

The very fact that the ACLU can argue on the basis of defending fundamental legal and democratic rights, would at least suggest that Edward Snowden acted appropriately as a democratic citizen. He was preformed a duty as a citizen that others could not have enacted. He has made the information available to the media in the form of The Guardian and The Washington Post, who are protected by The First Amendment. Could he as suggested have made the information available to Congress? In which case it would not be published. And the relevant person in Congress would be sworn to secrecy. And while Geoffrey Stone may be an eminent authority on the relevant law, how can he really say that Edmund Snowden judgement was “ill-informed, arrogant and amateurish”. Perhaps, as Chris Hedges suggested Professor Stone “was engaged in character assassination”

So did Edward Snowden incriminate himself by his statement he made in an interview with Glenn Greenwald, or establish the integrity of his action, which we are told cannot be recognized in court?

Perhaps, Professor Stone did not get to view this interview, and that might have been it was not featured in any of the media he purveyed. “Turnkey Tyranny”, is quite a phrase. So what is the price of patriotism?


For those who proclaim, “Get over it” and similar nostrums consider the testimony of Christopher Pyle, a whistle blower from 1971, when the Army, not the FBI was spying on protests. In CounterPunch he wrote:

Secret government was curbed in the 1970s. President Nixon was driven from office. The NSA’s watchlist was shut down; the FBI was returned to law enforcement. Wiretapping was brought under the supervision of a Foreign Intelligence Surveillance Court. Assassinations were forbidden by executive order, and the campaign to punish leakers ended when White House aides were caught trying to suborn Ellsberg’s judge. Both Houses of Congress created intelligence committees to oversee our secret agencies.

Unfortunately, these efforts at oversight have largely failed. Judge Vinson’s order to Verizon proves beyond cavil that the secret FISA court is a rubber stamp for the indiscriminate seizure of all sorts of personal records. President Obama would have us believe that all members of Congress have been properly briefed, but even Dianne Feinstein (D-Cal.), chair of the Senate Intelligence Committee, admits that she does not know how the data being siphoned off fiber optic cables and out the side doors of Internet servers is actually being used. Classified briefings, of course, are the perfect way to silence critics. Once briefed, however vaguely, committee members are bound to secrecy. They can’t talk about what they learned, even with members of their own staff.

Seventy percent of the federal government’s intelligence budget now goes to private contractors. Far from overseeing the agencies, members of Congress court them, hoping to obtain business for companies that contribute generously to their campaigns. House Intelligence Committee member Randy “Duke” Cunningham and CIA Executive Director Kyle Foggo both went to prison for illegally steering government contracts to the same defense contractor. Senator Feinstein was embarrassed in 2009 when one of her fundraisers invited fellow lobbyists to lunch with her and boasted — in writing, on the invitation — that the intelligence committee’s work would be “served up as the first course.”

Americans can no longer trust the President, Congress, or the courts to protect them, or the reporters, whistleblowers, and politicians on whom our democracy relies. Our government has been massively compromised by campaign contributions and executive secrecy.

At this stage, the only remedy is for more employees of the NSA, CIA, and FBI to undertake Thomas Drake’s kind of whistleblowing. This is what Edward Snowden has done: “I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.”

No doubt the Obama administration will come after Snowden, as it did Drake. If it is going to defend our corrupt system of secrecy, it has to. But if it does, it will further discredit itself, again proving Justice Louis Brandeis’s dictum that, in politics, “sunlight is the best disinfectant.”

As he points out, private contractors engaged in the racket of siphoning off public money, are not bound by The Fourth Amendment. Now there is global data collection. So “get over it” right?

And at Common Dreams he succinctly summarizes the situation:

This scandal is not just about Edward Snowden, the National Security Agency, and Snowden’s profiteering bosses at Booz Allen Hamilton. It is about secret government in general, the militarization of intelligence, the privatization of governmental functions, and the role of secret campaign contributions to prevent adequate oversight of the executive branch and its pet companies.

As to the sentencing/criminality problem suggested by Professor Stone this radio discussion widens that issue as well as providing alternative views. I find it extraordinary, that a lawyer would not offer a defence for the potential client’s action, where  in this case it would  seem obvious that Edward Snowden, in his mind, was acting as a whistle blower, at considerable cost to himself in the interest of the common good. James Cassidy, in The New Yorker, writes (via War In Context):

I wish these ventures, and the attorneys who pursue them, well. As I said at the beginning, not all lawyers are on the side of power. (I should also point out that this column is not directed at my friend and colleague Jeffrey Toobin, a lawyer and journalist who has been critical of Snowden but who was also one of the first to write about the expansion of executive power after 9/11.) Still, I won’t be holding my breath for the Administration’s legal challengers to succeed. The lawyers who put together the statutes enabling the FISA court rulings surely knew they would be challenged at some point, and they made it very difficult for such endeavors to succeed. It’s not clear that the plaintiffs will be able to clear the first hurdle of being heard in court and granted standing to sue. Even if they were, the Administration could ask a judge to dismiss the suits on the grounds that they are potentially damaging to national security. Can the government really do this under the law? Yes, it can, and the court might well accede to its requests.

Americans’ faith in the law is touching. In this instance, it is misplaced. If we want to stop the government spying on us, we are probably going to have to do it through the political system rather than the legal system. That won’t be easy either, but it may be the only way ahead.

The problem with that prescription is that the political system is broken, or more accurately has been reconfigured to advantage the wealthy few at the expense of the increasingly impoverished many.




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