Perhaps a minority opinion, but I believe the NSA vastly overstepped and that they need to be reined in (much further than what the USA Freedom Act contains)... but also that Snowden probably should face charges.
Snowden is charged with "willful communication of classified communications intelligence information to an unauthorized person," which -- I think sensibly -- is illegal even if the unauthorized person is a reporter and even if you had good intentions.
I'm not a lawyer, but if he wants to argue that he's innocent or that the law is unconstitutional, it seems like the courtroom is the right place to make that argument.
> I'm not a lawyer, but if he wants to argue that he's innocent or that the law is unconstitutional, it seems like the courtroom is the right place to make that argument.
You should know that he would be legally barred from doing so under an Espionage Act prosecution.
This is the stuff of nightmares. My nightmares, anyway. A fair and speedy trial in which you are not allowed to argue against the charges you face.
It flies in the face of everything American and everything decent. There's a reason jury nullification is a thing - it's a check against the unbridled power and resources of the prosecution, and any laws that may be unjust by existing.
Seriously, it's crazy to me when shit is ruled inadmissible when the information clearly has everything to do with the case. And if I put myself in the shoes of a juror, if I pass a verdict and later find out part of the truth was withheld, I'm very much going to feel that I was used - a pawn in a broken system, and not at all a participant in justice.
That seems a bit overblown. Nothing has been ruled inadmissible because Snowden hasn't made in court or filed any motions -- this is speculation. And "I had a good reason for committing the crime" is relevant to the case, but it's not evidence of innocence. There's a reason jury nullification is a thing, but there's also a reason the defense can't openly argue for it in court.
> There's a reason jury nullification is a thing, but there's also a reason the defense can't openly argue for it in court.
The reason being that if jurors knew they could just choose not to convict people who broke unjust laws, the conviction rate of the American justice system would be cut in half.
Well, I believe that's based on a hypothetical of how a judge might rule if Snowden attempts that defense.
But more importantly, I don't think that's wrong. "I had a good reason" isn't a defense against the charges since intent is not a factor in this crime. I don't think you're generally allowed to argue for jury nullification, which is what this would amount to. (If the government could prove he intended to cause harm I imagine there would be even more charges against him.) And it makes sense: we can't have a situation where any random defense employee can bring down a national security program that they themselves think is wrong or illegal.
I assume if there was a sentencing hearing, he'd be allowed to make a case for leniency based on why he did it.
"And it makes sense: we can't have a situation where any random defense employee can bring down a national security program that they themselves think is wrong or illegal."
I want that situation. I want that situation very badly.
People are generally predisposed to think that the stuff they're working on is a good thing. If, despite that, someone decides it's so appalling it needs to be stopped, I want them to speak up. Even if they're occasionally wrong.
Since the legislation is missing whistleblower protection (a fundamental flaw) there is no way Snowden can make any arguments in a U.S. court, at least not until the legislation is fixed. Unconstitutional or not, the law is just broken. It's painfuly obvious, and I can't fathom why fixing it isn't a higher priority (for example, wouldn't politicians who want votes promise to work for such reform now, after the Snowden debacle?)
Are whistleblowers allowed to blow their whistle to anyone? US has several whistleblower protection laws[1], but it seems to me that if you want protection from the law, you should report to the correct instances first, and then escalate from there. From Wikipedia:
> If the information that is being reported is classified, then the recipient must have a need-to-know and the recipient must hold a security clearance.
The espionage act, dating from the world war (The one with trenches and horses, not that new one) has no explicit whistleblower protection. It just talks about leaking sensitive information to the enemy It mentions forts, telegraphs...
The whistleblower protection act of 1989 eplicitly excludes those who work for the armed forces or the intelligence community (!). So basically the laws are wired such that the NSA and the Army are free to do anything (illegal) without scrutiny so long as it is also secret.
Let's put him on trial right after the trials for Keith Alexander and James Clapper wrap up. And while we're prosecuting him for it, we can draw up charges against half the Senate for violating the Logan Act.
He should face charges (and be acquitted or given a very light sentence due to mitigating circumstances). But, he should not be a victim of selective enforcement of the law.
I would agree with you as long as we also indict members of the US state security apparatus in VA and DC and around the world who authorized these programs as well. I'm not holding my breath.
At the least, I think Clapper should be investigated for perjury over lying to Congress.
But the fact that other criminal acts are going unpunished doesn't really have any bearing on Snowden's case. The crime Snowden is charged with is the same regardless of who else is charged.
"The crime Snowden is charged with is the same regardless of who else is charged."
Nominally true, but this approaches the cliche about the rich and poor alike being banned from sleeping under bridges.
So long as the law is unevenly enforced such that (for instance) Clapper is not targeted and Snowden is, the surveillance state retains the structural ability to frame the debate about itself, lie about what it does and severely punish anyone who exposes the lies.
That is not a system that promotes democratic oversight, especially oversight of a passel of agencies already armed with massive advantages in evading oversight not typically available to most other agencies, like (enormous) hidden budgets, specially crafted exemptions to sunshine, classification, etc. (And that's before we get to the really creepy things these agencies do.)
The state doesn't think it did anything wrong. All the way up to the president - and don't think the president wasn't aware of these operations - our representatives believe that these capabilities are necessary for the current and future security of the United States (which is, in fact, facing gigantic national security challenges).
The state does not want to give up these programs and it does not think that they are wrong.
Some members of Congress may think otherwise and some lawyers may think so as well. But the top brass even in the DOJ are mostly on board with these programs.
The most the state is willing to do is let Clapper 'retire' from service out of his official capacity and into a role where he can partner with the US government from the private sector and install a new general in his place.
As for Snowden, are there not mechanisms in our court system whereby lenience is given to those in special circumstances - whistleblowing laws being one of them?
I agree 100% that Snowden should face the music. But he doesn't believe he will get a fair trial in the United States and this is likely the case. So he's asking for amnesty.
I think that Snowden should continue asking countries for amnesty until it is clear that the legal circumstance in the United States and the conditions and location of the court he will be charged with (Virginia? Really?) will be a fair one. Mostly this means stronger whistleblower protection laws of the sort the Obama Administration promised but never delivered.
In the history of Espionage Act cases - the Espionage Act being a wartime temporary restriction of normal constitutional proceedings that survived past its wartime statute - excludes the possibility of arguing a whistleblower case, which is what Snowden would want in this case to argue.
It's important to note that Snowden did not disclose these documents - he brought them to journalists, who then worked with the USG to coordinate what could be published to the public.
Historical analogies, such as the huge civil rights win in Ellsberg's Times vs. The United States sets a precedence that is not going to stick with Snowden. Ellsberg could not escape the Espionage Act charge but it was dropped by minstrel. This is not going to be a repeat with Snowden - they are going after him with the Espionage Act because they know that it specifically excludes the defense that the leaks were performed in the public interest.
History of National Security laws show how opaque the presumed-to-be transparent process of the court are supposed to be. Take for example the Lavabit case, done without a jury with a secret court summons and with evidence that the state promised the judge was there but could not provide to the defense or public for inspection because... national security. All done with only one or two weeks notice and a gag order that made it nearly impossible to find legal representation.
This was for Snowden's email provider.
Finally, the Virginia court circuit is one filled with lawyers not known for their expertise or lenience in civil rights matters but one with lawyers known for their favoritism of national security.
But overall we've got what we need from Snowden and I don't care so very much for me what he does. When I say he shouldn't come home it's prescriptive advice: meaning I would recommend to him - if I were him - that he find amnesty because of the facts listed above.
Regardless of how long ago the law was passed, it intuitively makes sense that it's illegal to publicly disclose national security secrets.
This talk of the history of the Espionage Act feels like a lot of hand waving. You make it sound like the government cherrypicked and misapplied some old law in order to stymie Snowden's defense. I don't believe there ever was (nor ever will be) a scenario where leaking national security documents to the press is protected as whistleblowing. This is not specific to the Espionage Act, I don't think "yes I did it, but it was for the greater good of society" is typically a valid defense argument in any criminal case.
(And it's offtopic but I disagree with your characterization of the Lavabit case. Lavabit wasn't on trial; they were served with a valid wiretap order that was signed by a regular non-secret non-FISA court judge and based on reasonable evidence. That's how it's supposed to work. I wish all national security cases were pursued that way.)
Please see the reference to Ellsberg and the Pentagon Papers and the associated Supreme Court case where document leaking was protected by whistleblowing. You can also look at the COINTELPRO leaks.
The Espionage Act has been used a total of 8 times, multiple times during the Obama Administration.
(You can disagree but Lavabit had suite that it effectively was not allowed to bring. This is point I made above - Lavabit was trying to mount a legal defense against the destruction of its business in this case; it was not able to.)
The Supreme Court case you refer to was called "New York Times vs US Government" and was a major victory against prior restraint of the press, but it didn't protect Ellsberg.
But I feel we've lost the point. Snowden can't argue that his actions were legal or warranted by the Constitution while he's a fugitive.
This characterization of the Ellsberg case misses its entire context. I'm not sure if you did that purposefully, but perhaps you think there are other reasons why he was acquitted.
I do agree we are off point. Snowden can't argue that his actions were legal or warranted by the Constitution while he's a fugitive. He also can't if he isn't given a fair trial: https://news.ycombinator.com/item?id=9656310
But Eli, we agree. I too am insanely curious to see how this would be handled in court. I don't really have too strong opinions about Snowden himself - mostly I am concerned about the precedent the court case would set up and what it would communicate to other whistleblowers.
What sort of outcome do you want here? Would you like, as a result of the court case:
(A) A precedent whereby whistleblowers who share documents with the press that implicate the government in a scandal widely and bipartisanly disapproved of by the vast majority of American people are forgiven for their crimes on account of public good but where foreign spies who share documents with enemy intelligence can be charged
(B) A precedent whereby whistleblowers who share documents with the press that implicate the government in a scandal widely and bipartisanly disapproved of by the vast majority of American people are treated like foreign spies who share documents with enemy intelligence
[Or maybe you want some other precedent?]
I'm squarely in camp (A). Since law is a man made object, I say we get to making it possible for the legal landscape to allow the first precedent to be possible right away.
It does in fact make a difference when the law prosecutes some but not others. That is how kings and dictators rule, by enforcing 'the law' selectively and in secret.
I'll take this one further and add that selective timing of votes, polls, and application of law are all ways to 'rule by law' but game the system so that the rules have favoritism.
Take the recent Visa application process in the US. Let's pretend - and I'm not so sure we would be pretending - that the Visa process isn't 'random' but is prioritized for political purposes. This is one way that the appearance of fairness can be ridden for the pursuit of interests.
Even prioritizing police cases (parking tickets) to 'subjects of interest' or prior offenders is a skew of justice if these filters are correlated to any significant degree with political outcome or race/creed.
The US will poll citizens in other areas of the world until it is ascertained that the population would vote a certain way - at which point they will call for a vote to be held. This gives the outcome of a vote a sense of legitimacy to those just paying attention to the outcome of the vote - but those who can watch the process of repeated polling alongside influence operations understand just how fine an instrument this can be for deciding political outcomes.
This isn't to say any of this is 'wrong'. There's an undercurrent in the language - that's unfortunate. It's first enough to realize that these things are done and they are done sometimes explicitly with a purpose and other times by accident. Being aware is the first step to deliberation.
Most major social or democratic change depends on illegal activity. And the powers that be almost always appeal to the almighty Rule of Law. Later generations then look back with scorn at the dutiful law abiding folk who dramatically impeded progress. To me, looking to charge & punish Snowden is simply inviting scorn from our children and grandchildren who will see with more clarity what we today cannot. Personally, I'm grateful that so many people throughout history—even people I don't generally like—have broken the law so that we all might benefit.
Snowden is charged with "willful communication of classified communications intelligence information to an unauthorized person," which -- I think sensibly -- is illegal even if the unauthorized person is a reporter and even if you had good intentions.
I'm not a lawyer, but if he wants to argue that he's innocent or that the law is unconstitutional, it seems like the courtroom is the right place to make that argument.