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Daniel Ellsberg: Snowden Would Not Get a Fair Trial – and Kerry Is Wrong 519

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

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  • by Anonymous Coward on Sunday June 01, 2014 @07:00PM (#47143557)

    And he says Snowden won't. I believe him. What's your point?

  • by Anonymous Coward on Sunday June 01, 2014 @07:19PM (#47143619)

    You point out widespread malfeasance among the ruling class, and you will be made an example of.

    Until the American public stands up and demands that the people responsible for turning the USA into a surveillance state ALSO see their day in court, there can be no fairness. That needs to happen not for some low level NSA guy made to take a fall, but to the very top, up to and including the current and former POTUSes.

    Our society was built around not having a "ruling class" except from the law, and a "ruled class" against whom the law is used. We need to return to this. Alas, that won't happen if the American public continues to care more about Kim Kardashian than the freedom of their society.

  • by Anonymous Coward on Sunday June 01, 2014 @07:36PM (#47143705)

    They were (and still are) spying on their own people, the forces they command murdered innocent people abroad and they subverted the course of justice to murder their own people. Now perhaps this did lead to fewer deaths of American people on US soil and for that you feel the end justifies the means however that doesn't mean they are any less traitorous - both to their countrymen and to humanity.

  • by NicBenjamin ( 2124018 ) on Sunday June 01, 2014 @07:39PM (#47143735)

    If it wasn't for that last paragraph I'd have found your post quite persuasive.

    A rendition is when you arrest somebody in a second country and immediately turn them over to a third. It generally looks a lot like a kidnapping, but with legal paperwork done in the second country, because all arrests are basically legal kidnappings. An Extraordinary Rendition is done outside of the legal system of the second country. It looks even more like a kidnapping then a normal rendition, because there's no paperwork for the second country's legal system involved. They almost never happen because they're PR nightmares and good fucking luck getting cooperation from said second country's legal system in the future.

    Which means you're arguing that a) the US has the power to kidnap people in Russia, b) that a country exists that would claim jurisdiction over Ed Snowden, and c) there's a chance in hell that any US policy-maker would do this to a white man. By my count absolutely none of these things is true. All of our other extraordinary renditions have been to countries where the victim was born.

  • by Anonymous Coward on Sunday June 01, 2014 @08:47PM (#47144065)

    If he returns to the US, Snowden will never again see the light of day. Look at what happened to insiders like Thomas Drake (an NSA guy with 30 years in) who developed an analysis tool named "Thin Thread". He added constitutional protections. The NSA removed them. He complained. He was then threatened with 1000 years in prison by Federal Prosecuters (Persecutors?). Included was gag orders on just about everything, constant surveilence, seizure of this computers (home/work/wherever). Wiretaps, harrasment, intimidation, threats of physical violence, physical violence, etc. And he was an inside guy. Then take a look at what happened to the guy who was running Lavabit []. Gag orders prohibiting him from talking to his lawyer, gag orders preventing him from talking to anyone, judges imposing arbitrary fines of $5000 per day, he isn't even allowed to see the charges against him! This is sick! The US Constitution is an ideal that the US Government cannot live up to (and they have no intention of trying). If he returned to the US, what would happen to Snowden would best be described as "Punitive, Vindictive, and Arbitrary".

  • by mrxak ( 727974 ) on Sunday June 01, 2014 @09:22PM (#47144213)

    Did you actually read my post? I didn't say he deserves to go to jail. I said that he should get a fair trial, and outlined several scenarios in which he could escape serious prison time despite his admitted guilt.

    In another post on this story I say that it's a good thing the American people learn of the government doing things the American people doesn't want them to do. I'm glad Snowden revealed PRISM and programs like it. I'm less glad he revealed details about the NSA doing it's job, like spying on foreigners, but that's another issue.

    I happen to believe in trials. So did the founding fathers. The alternative is summary judgement or an assassination. Would you prefer those? Certainly some authoritarians and monarchists do.

  • by Man On Pink Corner ( 1089867 ) on Sunday June 01, 2014 @09:28PM (#47144227)

    I happen to believe in trials. So did the founding fathers.

    Great, that makes three of us. We can start with Clapper and Alexander, since they're easy to apprehend and Snowden isn't. We don't even have to extradite them from Russia or Hong Kong. We can send some Federal marshals to pick them up after breakfast tomorrow. Sound good to you?

  • by TubeSteak ( 669689 ) on Sunday June 01, 2014 @10:21PM (#47144399) Journal

    Spying on people like Angie Merkel is the entire reason we instructed our Congress to spend $30-$40 per person on an NSA. Period. End of story. Do not pass Go, do not collect $200. Same goes for most of the other NSA revelations (spying on Brazil's government, helping the Aussies spy on Indonesia, etc.).

    [Citation Needed]
    Extraordinary claims require extraordinary proof []

    Merkel complained to President Barack Obama on Wednesday after learning that U.S. intelligence may have targeted her mobile phone, saying that would be "a serious breach of trust" if confirmed. The two leaders spoke by phone, Carney said.

    "The president assured the chancellor that the United States is not monitoring and will not monitor the communications of the chancellor," said Carney. "The United States greatly values our close cooperation with Germany on a broad range of shared security challenges."

    Why did Obama promise not to spy on Merkel if that's what "we instructed our Congress to" do?
    (Who's "we" by the way? I sure as hell didn't instruct anyone do to that.)

    7 months later and Merkel is still pissed off about it: []

    Ms. Merkel, who last fall declared that âoespying between friends is simply unacceptableâ and that the United States had opened a breach of trust that would have to be repaired, said at the news conference that âoewe have a few difficulties yet to overcome.â One remaining issue, she said, was the âoeproportionalityâ of the surveillance.

  • by Will.Woodhull ( 1038600 ) <> on Sunday June 01, 2014 @11:12PM (#47144555) Homepage Journal

    At this time, I think any attempt to bring Snowden to trial would ignite a firestorm in this country no matter what verdict was reached. I think that will be the situation for the rest of his life.

    There can be no question that he violated USA laws.

    But there can also be no question that his actions are bringing pressure to bear on USA agencies to force them to comply with the Constitution. Without those actions, the NSA would continue to run wild as a rogue agency.

    I think the only sane way to resolve this mess is to let it alone until Obama's last day in office. Then give Snowden the same kind of Presidential pardon that President Ford gave to President Nixon: a pardon before trial, a pardon before even accusation or indictment. Let Snowden have his passport back, so he could live and move anywhere in the world with the same freedom that any other USA citizen enjoys. But make it clear that he is not welcome to return to the USA, since nothing good could come of that. I would even support paying him a modest annuity on condition that he never return to the USA, and never take any further legal or public action regarding his status. Let him live out his days as, in the view of some persons, a reprehensible outcast in exile. And in the view of other persons, as a patriotic hero whose sacrifices include ostracism from his native land. Let the historians of a hundred years from now be the ones to measure the value of his actions. There is no reason why that has to be done now and there are many reasons why it should not be attempted until all of us are dead.

  • by log0n ( 18224 ) on Sunday June 01, 2014 @11:31PM (#47144635)

    "Until the American public stands up and demands"

    I see this partial slogan bandied about all the time, that we only have ourselves to blame. How the fuck exactly do we stand up and demand? Most of us do already .. voting doesn't fix things. Peaceful protest doesn't fix things. Hell, the only real power we do have is w/ $, and that doesn't fix things. Snowden has done what few of us are capable of, mainly because we're peons, and it's still not fixing things.

    "Until the American public stands up and demands" means the only real way things will happen will be through violence.

  • by Vellmont ( 569020 ) on Sunday June 01, 2014 @11:51PM (#47144711) Homepage

    You've missed a very, very big loophole. The US government decides NOT to prosecute him. Banks commit massive fraud and destroy our economy in 2008.. and... nobody gets prosecuted. That was most certainly a political decision to prosecute or not. It happens all the time. It's really quite business as usual.

    What I'd like to see is the Obama administration simply say they were wrong to spy on Americans and vacuum up masses amounts of intelligence without a warrant, then stop doing that crap and pass a law that says they can't. Then refuse to prosecute Snowden for any wrongdoing.

    The law works like this ALL the time. I'm no fool and I sure as hell realize this isn't going to happen anytime soon. But wait a few years for current guys to get out of office, and someone else to get in (likely a Democrat wanting to distinguish themselves from the past, or one of those extrodinarily rare beed of non-crazy Republicans who also are wiling to stand up to their crazy party every so often). Then it might, just might happen. But not for perhaps 5-10 years.

  • by mrxak ( 727974 ) on Monday June 02, 2014 @12:56AM (#47144903)

    Clapper openly admitted he lied to congress. Snowden openly admitted to espionage (he may define the term differently, but the law defines what he did as espionage and he admitted to the acts). I think the chances of either getting a trial any time soon is pretty slim. All of this is hypothetical.

    I would like to see fair trials for everyone accused of crimes. This is an article about Snowden, so I commented on Snowden. I'm sorry if other people decided that my commenting on-topic has implications about my views about off-topic subjects. If Slashdot has a story tomorrow about government officials admitting to crimes, I will happily say they're guilty too, and should get a fair trial with all the same legal rights that Snowden should get. I think trials are a good thing. I think due process is a good thing. I think our justice system that includes jury nullification, appeals, commutations, and pardons is a good thing. Apparently that offends some people. Who knew?

  • by mrxak ( 727974 ) on Monday June 02, 2014 @01:33AM (#47144991)

    I freely admit that there are problems with the system too. But that's a discussion for another topic. I was only here to address specifically this news article. I didn't say anything terribly controversial with my very narrow focus, but unfortunately people decided to imagine my positions on other issues I did not address at all, positions I do not hold.

    Geez, a guy can't come out in favor of fair trials without getting called an authoritarian. Who knew?

  • by aralin ( 107264 ) on Monday June 02, 2014 @02:18AM (#47145089)

    The thing is, almost anyone in the current or previous governments is guilty of breaking the same laws that Snowden is accused of breaking. But in a world where everyone is guilty, the prosecutor is the judge. His discretion to prosecute is the ultimate judgement. If you do decide to prosecute, finding the person guilty is only a formality in our current system. Everyone is guilty. There is no discussion, it is no longer possible to live life without breaking any laws.

  • Re: Traitor (Score:4, Interesting)

    by mysidia ( 191772 ) on Monday June 02, 2014 @02:27AM (#47145113)

    So technically the definition of treason encompasses ANY whistleblower about ANY National Security issues.

    Perhaps, so.

    It is mostly an academic point, however. There are plenty of crimes the feds can charge Snowden with.

    Including the theft of data, CFAA violations including wire fraud, willful unauthorized disclosure of classified intelligence, unauthorized disemination of national defense information, and espionage charges.

    They can essentially put him in jail for a few hundred years, or get the death penalty already: without having to even invoke treason as a charge against Snowden.

No problem is so large it can't be fit in somewhere.