He Won’t Be Able to Tell His Side of the Story
SecState John Kerry said that Ed Snowden really needs to “stand up in the United States and make his case to the American people.” Kerry declared that “A patriot would not run away. … He can come home but he’s a fugitive from justice.”
And he said:
If he cares so much about America and he believes in America, he should trust the American system of justice.
And he said Snowden should “man up” and come back to face the music.
Is he right?
Danel Ellsberg writes, in an article entitled “Snowden would not get a fair trial – and Kerry is wrong“:
As Snowden told Brian Williams on NBC later that night and Snowden’s lawyer told me the next morning, he would have no chance whatsoever to come home and make his case – in public or in court.
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.
I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.
But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My 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, and so it would be if Edward Snowden was on trial in an American courtroom now.
Indeed, in recent years, the silencing effect of the Espionage Act has only become worse. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words “whistleblowing” and “overclassification” in his trial. (Thankfully, the Justice Department’s case fell apart one day before it was to begin). In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution “need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially.”
We saw this entire scenario play out last summer in the trial of Chelsea Manning. The military judge in that case did not let Manning or her lawyer argue her intent, the lack of damage to the US, overclassification of the cables or the benefits of the leaks … until she was already found guilty.
Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to “make their case” from outside the United States.
As someone who has held top clearances since the Reagan administration, I do not support the release of classified information. However, as someone who has litigated national security cases from terrorism to espionage cases, there is every reason for Snowden to be leery of our system as it currently stands in the post 9-11 world. I have great faith and love for our legal system, but national security law has become increasingly draconian and outcome determinative due to various changes in the last decade. This Administration has continued the use of secret legal opinions and secret evidence in cases. The agencies continue to classify information to prevent the public or defendants from reviewing potentially embarrassing or conflicting material. President Obama has refused to close tribunal proceedings and maintains the same claim of his inherent authority to decide whether people go to real courts or the widely ridiculed tribunal proceedings. Even if in the federal system, the government would hit Snowden with SAMs to cut off any contact and impose limitations on even his cleared counsel in speaking with him. At trial, federal judges are increasingly barring arguments from defendants as “immaterial” even when those arguments are the real reason for their actions.Thus, the Justice Department would likely move to exclude arguments that disclosure was necessary because Snowden had no real alternative for reform. He might be even prevented from arguing that he was seeking to protect citizens from the systemic and comprehensive denial of privacy. Even if some of that motivational argument were allowed, it would likely trigger an instruction that that is no defense to the charges. Sentencing enhancements routinely used by the Justice Department would guarantee a life sentence if convicted for Snowden.
As for utilizing the system to make these disclosures before he fled, Snowden had little reason to trust the congressional oversight committees or the agencies themselves. Just for the record, as many of you know, I represented the prior whistleblower who first revealed this program years before Snowden. He tried to use the system. [Background.]
As I have testified in Congress, the whistleblower system referred to by Clinton is a colossal joke. First, there are exceptions under the whistleblower laws for national security information. Second, the House and Senate oversight committees are viewed as the place that whistleblowers go to get arrested. There is a revolving door of staff back and forth to the intelligence agencies and people like Dianne Feinstein have denounced Snowden as a traitor. While one can still criticize Snowden for breaking classification laws, the suggestion that he could have used the whistleblower system is hardly self-evident if you are familiar with the laws or the history of such cases.
Whatever Snowden decides, it is clear that if he returns he will be quickly put in isolation and would be virtually certain of conviction with a life sentence. That is assuming that some leaders do not get their way in calling for a death penalty case.
He’s right. Access to justice has been severely curtailed in America. Even when the prisoner is afforded a trial, it is becoming more and more common for the government to prosecute cases based upon “secret evidence” that they don’t show to the defendant, his lawyer … or sometimes even the judge hearing the case. The government uses “secret evidence” to prosecute leaking or terrorism charges (even against U.S. soldiers) and even to assassinate people. And see this and this. Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs. Indeed, even the laws themselves are now starting to be kept secret.
And Juan Cole – Richard P. Mitchell Collegiate Professor of History at the University of Michigan – points out:
Here are some reasons Mr. Snowden would be unwise to trust himself to [the American justice] system, given the charges against him:
1. The United Nations Special Rapporteur found that the US was guilty of cruel and inhuman treatment of Chelsea (Bradley) Manning, who was responsible for the Wikileaks and revelations of US killing of unarmed journalists in Iraq. Manning was kept in solitary confinement and isolated 23 hours a day for months on end, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture, on the trumped up pretext that he was suicidal (his psychiatrist disagreed).
2. The Espionage Act under which Snowden would likely be tried is a fascist law from the time when President Woodrow Wilson (like Obama a scholar of the constitution) was trying to take the US into the war, and was used to repeal the First Amendment right of Americans to protest this action. It was used to arbitrarily imprison thousands and is full of unconstitutional provisions. In recent decades the act was used against whistleblowers only three times, but Barack Obama loves it to death. [Background.] It is an embarrassment that it is still on the books and it reflects extremely badly on Obama and on Eric Holder that they have revived it as a tool against whistleblowing (which is most often a public service).
3. John Kiriakou, who revealed CIA torture under Bush-Cheney, was prevented by the Espionage Act from addressing the jury to explain the intentions behind his actions and therefore forced into a plea bargain. None of the CIA officers who perpetrated the torture or their superiors, who ordered it, have been punished, but Kiriakou is in prison and his family is in danger of losing the house because of the lack of income. The US public deserved to know about the torture rather than having Obama bury it the way he has buried so many other things wrong with the system.
4. National security official such as Snowden are not covered by protections for whistleblowers in the Federal government, as Thomas Drake discovered.
5. Not only did the US torture Manning, US officials have on many occasions practiced arbitrary arrest and imprisonment and torture. Most often these policies have been enacted abroad, as at Abu Ghraib, Bagram, Guantanamo, and black sites in countries such as Poland. But arbitrary arrest, trigger-happy killings, and extended solitary confinement are all practiced domestically as well, on America’s vast gulag of 2.4 million prisoners, 4/5s of them black or brown. A fourth of all the prisoners in jail in the entire world of 7 billion people are in the United States. At any one time 80,000 US prisoners are in 23-hour-a-day solitary confinement. Abu Ghraib wasn’t a low-level military excess. It was simply the transposition to Iraq of the ideals of an incarcerating society, dedicating to disciplining and interrogating those who fall into the system’s hands. You don’t get these outcomes– a fourth of the world’s prisoners and a small city worth people in solitary confinement by accident. These abuses are systemic
And because the government now claims the power to indefinitely detain without access to a lawyer or judge – or even assassinate – American citizens, Snowden could simply disappear without a trace if he returns.
Postscript: In a fascinating passage, Turley explains the real reason that the powers-that-be hate Snowden so much:
The ruling class in Washington finds Snowden perfectly incomprehensible. Every aspect of our political system has long been tied down and controlled by the two parties. For such leaders, someone like Snowden is nothing short of an alien visitation — someone who throws away his career and possible freedom for what he claims to be principle. To make matters worse, Snowden is viewed as a whistleblower, if not a hero, by many in the United States and around the world. (However, polls in the U.S. are conflicting. A majority are glad that the disclosures were made but other polls show that a majority believes Snowden should stand trial. Making things even more precarious for people like Clinton is that younger people have particularly rallied to the side of Snowden as a whistleblower). While President Obama implausibly claimed that he would have reviewed these abusive programs without Snowden’s disclosures, Snowden was clearly the cause of multiple investigations and reforms of these programs.
Snowden committed the ultimate crime in Washington: he embarrassed leadership in both parties. He broke the rules and went outside of a carefully controlled duopoly system of control. He embarrassed many, including Clinton, who sat by quietly as the national security system invaded the privacy of every American citizen. Indeed, for people in the establishment who have spent their lives reinforcing that system, someone like Snowden is more than an anomaly. He is someone who not only broke the rules but threw away his career to make these disclosures. For people like Clinton and Kerry, he could just as well be a man from Mars.
Note: Arguably, Bush, Cheney and Obama should man up – and turn themselves in – before Snowden. After all, while the government has alleged (without any evidence) that Snowden’s disclosures have costs lives, Bush, Cheney and Obama’s war crimes have collectively led to the deaths of thousands.