Welcome to DU! The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards. Join the community: Create a free account Support DU (and get rid of ads!): Become a Star Member Latest Breaking News General Discussion The DU Lounge All Forums Issue Forums Culture Forums Alliance Forums Region Forums Support Forums Help & Search

snot

(10,530 posts)
Fri Jan 24, 2014, 05:03 PM Jan 2014

How Snowden is Legally Barred from Defending Himself in Court

Last edited Sat Jan 25, 2014, 01:03 PM - Edit history (1)

(Edited to add: It appears to me that many of those replying below did not read the article.)

From http://pando.com/2014/01/22/how-whistleblowers-are-barred-from-defending-themselves-in-court/ :

As the Government Accountability Project’s Jesselyn Radack notes in a new Wall Street Journal op-ed, whistleblowers like Snowden are barred from making their case in court when they stand trial for violations of the Espionage Act:

The Espionage Act effectively hinders a person from defending himself before a jury in an open court, as past examples show. In the case of Mr. Drake, who disclosed massive fraud, waste and abuse in NSA surveillance programs, the government moved to preclude the word “whistleblowing” from trial…Kiriakou, the first CIA officer to tell the media about waterboarding, could not tell the jury about his lack of intent…. And Manning’s salutary motive and intent, for revealing the military gunning down innocent civilians in Iraq as if they were playing “Call of Duty,” was ruled inadmissible until sentencing…

The Espionage Act has morphed into a strict liability law, which means the government does not have to show the defendant had a felonious intent. A defendant cannot argue that the information was improperly classified. First Amendment arguments have failed, largely because they would criminalize the journalism made possible by the ‘leaks.’ The motive and intent of the whistleblower are irrelevant. And there is no whistleblower defense, meaning the public value of the material disclosed does not matter at all.


One takeaway from this is that – shocker! – the Washington establishment promoting the “let him make his case in court” is deliberately deceiving the public. Indeed, in its effort to defend the Obama administration and the national security state, that establishment is making a political opportunity out of the fact that most Americans don’t know the Espionage Act limits defendants’ rights.

Another takeaway: polling itself can be deceptive. Yes, Pew found 56 percent of Americans want Snowden to stand trial. But what would that number look like if Americans were asked a question with more detail? Would the same number of Americans support Snowden (or any other whistleblower) being prosecuted under a law that bars him from mounting a full argument in his own defense? Probably not.


More at the link.

(Note re- any copyright concerns: only 2 or 3 paragraphs are quoted from any one author.)
51 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies
How Snowden is Legally Barred from Defending Himself in Court (Original Post) snot Jan 2014 OP
i agree. he deserves a fair trial. nt arely staircase Jan 2014 #1
He does deserve a fair trial . . . brush Jan 2014 #4
I agree 100 percent arely staircase Jan 2014 #7
do you happen to have a copy of the oath that contractors pledge? grasswire Jan 2014 #10
It is the same oath government employes take when they are hired. RC Jan 2014 #14
shhhhh. I know that. grasswire Jan 2014 #16
Sorry. RC Jan 2014 #17
Did you not read my post? brush Jan 2014 #20
is he charged with violating an oath? nt arely staircase Jan 2014 #18
He is charged with violations of 18 USC 641, 18 USC 793, and 18 USC 798: and, by signing struggle4progress Jan 2014 #30
yep arely staircase Jan 2014 #33
A big chunk of the country has been bug-fuckin-around-the-bend for as long as I, or anybody I know, struggle4progress Jan 2014 #35
... Snowden noted matter-of-factly that Standard Form 312, the ­classified-information nondisclosure struggle4progress Jan 2014 #25
So he didn't violate any oath. Thanks. riderinthestorm Jan 2014 #27
It's a distinction here without a difference. You may review struggle4progress Jan 2014 #29
Whistleblowing on illegal government actions will always be the correct action riderinthestorm Jan 2014 #31
Perhaps you can develop a little more clearly for us your theory that Snowden struggle4progress Jan 2014 #36
Snowden's said he believes there needs to be a global conversation on illegal surveillance riderinthestorm Jan 2014 #51
I stand with you, as you stand with truedelphi Jan 2014 #37
Here's what Australia's foreign minister said about Snowden Number23 Jan 2014 #19
Bishop said that Snowden.. "continues to shamefully betray his nation while skulking in Russia". Cha Jan 2014 #34
He took no oath to his employer. He signed an employment agreement. The "oath" argument is a sham. Luminous Animal Jan 2014 #41
How about "agreement" then and not oath? brush Jan 2014 #45
defendants have to make arguments based on the law just like prosecutors do. geek tragedy Jan 2014 #2
That argument works at a witch trial too. nt Xipe Totec Jan 2014 #5
if the criminal statute is unfair then the solution is to geek tragedy Jan 2014 #6
I'll tell Snowden toget right on it. nt Xipe Totec Jan 2014 #9
What argument? That the defendant be present? nt msanthrope Jan 2014 #49
Deliberately obtuse, are we? Xipe Totec Jan 2014 #50
. struggle4progress Jan 2014 #32
That argument works at witch trials, too. Luminous Animal Jan 2014 #42
eh ... lighten up ... it's a classic old cartoon about a kid who likes to make up the rules struggle4progress Jan 2014 #43
Yes, I know. And Watterson can proudly state which side he was on... Luminous Animal Jan 2014 #44
He can also claim whistleblower status and have a hearing to see if that can be argued msanthrope Jan 2014 #46
He's not coming back. Way too much has to change ... 1000words Jan 2014 #3
Bring the guilty man in for a fair trial and hanging. Tierra_y_Libertad Jan 2014 #8
^^^This truebrit71 Jan 2014 #11
Shocker is right. They become less and less believable with each new deception they put forth. sabrina 1 Jan 2014 #12
Thanks, Sabrina 1...well said! KoKo Jan 2014 #24
He would have to come home first Progressive dog Jan 2014 #13
The part she's wrong about is illegal activities can not be classified. jeff47 Jan 2014 #15
"Washington establishment promoting the “let him make his case in court” is deliberately deceiving" AZ Progressive Jan 2014 #21
K & R for msanthrope... nt riderinthestorm Jan 2014 #22
Radack's WSJ article seems to be behind a paywall. But the excerpts from her article suggest struggle4progress Jan 2014 #23
Well..she forgets something primal...Snowden can't argue ANYTHING from Russia. Which is why msanthrope Jan 2014 #47
US Courts are so corrupt that it doesn't matter. n/t n2doc Jan 2014 #26
Snowden will never come back and I dont blame him one bit davidn3600 Jan 2014 #28
I don't think I'll take author Harvey Silverglate's word for that struggle4progress Jan 2014 #38
Are you sure you know all the laws? davidn3600 Jan 2014 #39
I've heard this rightwing bullshizz for decades: it's usually pushed by anti-regulatory struggle4progress Jan 2014 #40
Lemme ask you something....if you were about to 'whistleblow' wouldn't you msanthrope Jan 2014 #48

brush

(53,787 posts)
4. He does deserve a fair trial . . .
Fri Jan 24, 2014, 05:15 PM
Jan 2014

but I think Snowden is afraid of what's likely to happen in a trial because he admitted stealing material he had taken an oath to protect.

If he had limited his disclosures to just the domestic info gathering he'd have a better shot under the whistle blower laws but he divulged intricacies of our international covert operations. And I read yesterday that he even divulged info of Australia's covert operations in Indonesia.

Those are going to be very high hurdles for any defense to get over.

I mean how is it Snowden's decision, or business, to divulge anything about what Australia is doing covertly? He's not an Aussie.

Him and Greenwald definitely went too far.

arely staircase

(12,482 posts)
7. I agree 100 percent
Fri Jan 24, 2014, 05:23 PM
Jan 2014

if he had limited what he divulged to information about the NSA spying on Americans he could claim the whistleblower status. I think the phone records stuff and the interception of American's e-mail by PRISM needed to be addressed in a public debate. But telling other countries how the US spies steps over the line. If what I have read he has done is all he has done I would have no problem if he cut a plea deal to serve a few years and agree not to ever profit financially from his crimes. I don't think he needs to be locked up for a long time. And the OP is correct that if he can't offer into evidence things that would be exculpatory or mitigating then that isn't right. He should have US lawyers trying to cut a good deal for him since the AG has thrown it out there publicly.

 

RC

(25,592 posts)
14. It is the same oath government employes take when they are hired.
Fri Jan 24, 2014, 06:46 PM
Jan 2014

It is also the same basic oath Congress is given and the President when he is sworn in.
You can Google it.

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."[64]



I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. [So help me God.][66]


In all cases it is the Constitution that they are to defend and protect. Snowden did just that when he expose the excesses of the NSA.

grasswire

(50,130 posts)
16. shhhhh. I know that.
Fri Jan 24, 2014, 06:56 PM
Jan 2014

I was hoping to flush out the poster who said Snowden violated his oath. Heh.

 

RC

(25,592 posts)
17. Sorry.
Fri Jan 24, 2014, 07:14 PM
Jan 2014

It's just that there are so many NSA and FBI excess supporters around here. It is hard to believe this is supposed to be some kind of progressive web site sometimes.

brush

(53,787 posts)
20. Did you not read my post?
Fri Jan 24, 2014, 07:46 PM
Jan 2014

I clearly stated that had Snowden stuck to reveal NSA's domestic info gathering he would be a whistle blower and protected by those laws.

I'm no NSA supporter that needs to be flushed out and my progressive credentials were well established, probably before you were born. If Snowden had limited his actions to the domestic sphere I'd also be calling him a hero because the NSA needs to butt out of US citizens' business.

But divulging intricacies of our international covert operations is not something that should be left to a somewhat naive 29-year-old who seems to have not thought his actions through as he seemingly was manipulated by Greenwald, who has now parleyed the stolen info into a lucrative deal to start his own media empire, while poor Snowden is now stranded in Russia and pinning to come home. There's a reason why one has to be at least 35-years-old to run for president as you will have, using more mature judgement, learned to think things through to the possible consequences of one's actions, something Snowden obviously didn't do.

And another thing, what business is it of he and Greenwald to revealed covert operations of Australia in Indonesia? They also released that info.

It surprises me that those who call themselves progressives can't see the difference between the good service done by Snowden in revealing the domestic info gathering and the harm done to the country by revealing how and what the country is doing internationally to intercept information that could prevent damage to our country.

There are two entirely different issues here that shouldn't be that hard to differentiate.

struggle4progress

(118,295 posts)
30. He is charged with violations of 18 USC 641, 18 USC 793, and 18 USC 798: and, by signing
Fri Jan 24, 2014, 11:38 PM
Jan 2014

Standard Form 312 --- in which he affirmed, inter alia,

"... I understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified information ... I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws ... I have read this Agreement carefully and my questions, if any, have been answered ..."


--- he was provided opportunity to take note of the fact that such laws as 18 USC 641, 18 USC 793, and 18 USC 798 applied

arely staircase

(12,482 posts)
33. yep
Fri Jan 24, 2014, 11:48 PM
Jan 2014

I have moderated my position on this guy somewhat since the story broke. I really have become convinced that the NSA is bugfuck off the reservation. But I really can't get past him letting other countries know what the US is doing as it relates to those countries. Telling the American people the US is keeping a record of who you call and may be reading some of your e-mail is whistleblower shit. Telling the Chinese about our operations against them is a different thing.

struggle4progress

(118,295 posts)
35. A big chunk of the country has been bug-fuckin-around-the-bend for as long as I, or anybody I know,
Sat Jan 25, 2014, 01:03 AM
Jan 2014

can remember: Southern racist violence with immunity is within living memory, as are the blacklists of the McCarthy scare; the Vietnam war tore the country down the middle; J Edgar Hoover made himself into a terrifying little Napoleon with his blackmail threats; Nixon wanted "preventative detention" and continued a long history of vicious foreign policy, and his use of the IRS, CIA, and FBI against his opponents, both here and abroad, was appalling; Reagan regularly prevented foreign speakers, who didn't share his ideological views, from even visiting the US -- and he did much worse, too

But things took a sharp turn for the worse after 2000 IMO. Gingrich's politics-of-slander became GoP standard fare. Even the semblance of the rule of law seemed under threat. And large institutions have substantial inertia: W packed the civil service with his buddies while in office and as he left office. Meanwhile, the GoP descended further into its habit of recruiting fringe voters

Everyone who's worried about metadata collection has good cause for long-term concern, I think. But it can't be solved by executive order, first because whatever can be swept away by executive order can be reinstated by later executive order, and second, because of the current political dynamics: Rove really taught the Republicans to play "heads I win, tails you lose" -- if Obama, or the Democrats, try to stop NSA metadata collection, contrary to NSA wishes, Republicans will predictably oppose the move and try to paint them as soft on terror; and metadata collection were ended in such away, Republicans will blame Democrats for whatever terrorist act comes along next

As far as I can tell, the President's done the only thing that makes sense politically: in the face of constant Republican opposition to his nominees, he finally got the PCLOB up and running again in 2012, after a quorumless four years; he put three Republicans on the PCLOB and two Democrats, and they made numerous recommendations, including ending the 215 metadata collection -- a recommendation splitting along party lines with the Rs against metadata collection and the Ds in favor. Before the report became public, the President gave a speech, in which he announced policy changes for NSA (taken from the PCLOB report, though not adopting all recommendations). From an activist PoV, I think this is good: we have a tool we can use to push Republican congressfolk towards defund 215 metadata collection, and in doing so they can all portray themselves as great civil libertarians -- and meanwhile, when educating people on the street, we're in a position to remind everybody that the whole stinkin heap was a republican idea to begin with, done illegally for some years after 2001, and then done quasi-legally using a secret court ruling requested by Alberto Gonzales from 2006 on; and we're also in a position to suggest2 that Republicans are doing the right thing, not because it's the right thing, but because they see it as yet another opportunity to obstruct the President -- but because it's the right thing to do, we'll support them if they want to end the 215 bulk collection

It doesn't much change my opinion of Snowden. I think anyone who was paying attention knew that the revelations about Bush's illegal mass spying didn't end the mass spying but only limited it somewhat, reinstating warrants for content collection and immunizing the telecoms for their participation in the criminal activity. But just as I felt the government should have declined to prosecute Manning for the helicopter gunship video, there being hundreds of thousands of other unrelated releases for which he could be properly prosecuted, I will hope that the government case against Snowden makes no reference to the 215 metadata collection: there are plenty of other unrelated releases for which he could be properly prosecuted

The morality of ignoring the law is quite tricky. I celebrate the freedom riders and sit-ins of the civil rights movement -- but in part because they courageously took a life-and-death stand on real life-and-death issues. Snowden would get more sympathy from me if his story was more coherent: but he popped up in Hong Kong, with a peculiar and largely unverifiable history, claiming childishly "I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President" and providing explanations of various documents that turned out not to be entirely accurate -- then, just in time to sabotage the US-China summit, he seems to have provided the South China Morning Post with a list of IP addresses in China he said the NSA had hacked into. There followed, in quick succession, a number of other likewise carefully-timed foreign policy disruptions. Of course, to know for certain what to think about this, we should have to know a great deal more --- but, frankly, I do not think that information will be soon forthcoming

struggle4progress

(118,295 posts)
25. ... Snowden noted matter-of-factly that Standard Form 312, the ­classified-information nondisclosure
Fri Jan 24, 2014, 09:59 PM
Jan 2014

agreement, is a civil contract. He signed it ...
Edward Snowden, after months of NSA revelations, says his mission’s accomplished
By Barton Gellman, Published: December 23

Standard Form 312 (pdf)

struggle4progress

(118,295 posts)
29. It's a distinction here without a difference. You may review
Fri Jan 24, 2014, 11:27 PM
Jan 2014

the Briefing Booklet for Standard Form 312, by which the signer affirms an understanding of being, and agreement to being, subject to such laws as 18 USC 641, 18 USC 793, and 18 USC 798, which are, in fact, the basis of the charges against Snowden

 

riderinthestorm

(23,272 posts)
31. Whistleblowing on illegal government actions will always be the correct action
Fri Jan 24, 2014, 11:38 PM
Jan 2014

Snowden actually upheld his oath. The contract is/was an impediment towards the greater goal of exposing NSA overreach. Contracts are broken every day.

Snowden will never get a fair hearing on that contractual agreement so it's moot IMHO. I was simply reiterating the fallacious statement that he violated his oath.

struggle4progress

(118,295 posts)
36. Perhaps you can develop a little more clearly for us your theory that Snowden
Sat Jan 25, 2014, 01:31 AM
Jan 2014

is blowing-the-whistle on illegal NSA activity by telling Indonesia that Australia may have been eavesdropping there

Is there some section of the United States Code that could criminalize alleged Australian snooping in Indonesia? Has the US Congress defunded some related program? Or maybe you can cite a US Court case leading to your conclusion?

 

riderinthestorm

(23,272 posts)
51. Snowden's said he believes there needs to be a global conversation on illegal surveillance
Sun Jan 26, 2014, 12:23 AM
Jan 2014

Australia is part of our "five eyes" partnership and is certainly complicit in illegal intelligence gathering on friendly allies (and Americans).

Or do you believe that the NSA isn't directing intelligence gathering amongst the "five eyes" participants?


truedelphi

(32,324 posts)
37. I stand with you, as you stand with
Sat Jan 25, 2014, 01:58 AM
Jan 2014

Snowden.

The Constitution states that we are to be free from unreasonable searches. This Surveilling all of us all the time is indeed an unreasonable intrusion into our privacy.

In my book, along with Dan Ellsberg, Drake and Manning, he is a hero.

Number23

(24,544 posts)
19. Here's what Australia's foreign minister said about Snowden
Fri Jan 24, 2014, 07:19 PM
Jan 2014
Shortly before a meeting with US Vice President Joe Biden, Bishop said that Snowden "continues to shamefully betray his nation while skulking in Russia".

"This represents unprecedented treachery; he is no hero," she added, in a speech at the Center for Strategic and International Studies on Wednesday.

"Snowden claims his actions were driven by a desire for transparency, but in fact they strike at the heart of the collaboration between those nations in world affairs that stand at the forefront of protecting human freedom," she said. http://www.zdnet.com/julie-bishop-lashes-snowden-on-us-visit-7000025475/


On this particular, very specific sentiment, I agree with Minister Bishop.

Cha

(297,307 posts)
34. Bishop said that Snowden.. "continues to shamefully betray his nation while skulking in Russia".
Sat Jan 25, 2014, 12:24 AM
Jan 2014

Thanks Number23!

I agree too

Luminous Animal

(27,310 posts)
41. He took no oath to his employer. He signed an employment agreement. The "oath" argument is a sham.
Sat Jan 25, 2014, 03:47 AM
Jan 2014

Do you sign an oath to your employer? And as far as what an Aussie can do, he seeks a global democratic decision on privacy rights.

http://www.democraticunderground.com/10024379339

brush

(53,787 posts)
45. How about "agreement" then and not oath?
Sat Jan 25, 2014, 10:31 AM
Jan 2014

The following paragraph is from another post by struggleforprogress:

"Snowden noted matter-of-factly that Standard Form 312, the ­classified-information nondisclosure
agreement, is a civil contract. He signed it ..."

I myself have contended all along that if Snowden had limited his actions to the domestic sphere I'd also be calling him a hero because the NSA needs to butt out of US citizens' business.

It surprises me that those who call themselves progressives can't see the difference between the good service done by Snowden in revealing the domestic info gathering and the harm done to the country by revealing how and what the country is doing internationally to intercept information that could prevent damage to our country.

There are two entirely different issues here that shouldn't be that hard to differentiate.

IMO, divulging intricacies of our international covert operations is not something that should be left to a somewhat naive 29-year-old who seems to have not thought his actions through. He seemingly was manipulated by Greenwald, who has now parlayed the stolen info into a lucrative deal to start his own media empire, while poor Snowden is now stranded in Russia and pinning to come home. There's a reason why one has to be at least 35-years-old to run for president as you will have hopefully, with more life experience and mature judgement, learned to think things through to the possible consequences of one's actions, something Snowden obviously didn't do or he wouldn't be stuck in "Putin's paradise".

And another thing, what business is it of he and Greenwald to revealed covert operations of Australia in Indonesia? They also released that info. That's a mouth-opening WTF?

 

geek tragedy

(68,868 posts)
2. defendants have to make arguments based on the law just like prosecutors do.
Fri Jan 24, 2014, 05:08 PM
Jan 2014

trials aren't Calvinball

struggle4progress

(118,295 posts)
43. eh ... lighten up ... it's a classic old cartoon about a kid who likes to make up the rules
Sat Jan 25, 2014, 04:00 AM
Jan 2014

as he goes along ... and a nice metaphor imo for the quality of some of our discussions here at du on various topic

 

msanthrope

(37,549 posts)
46. He can also claim whistleblower status and have a hearing to see if that can be argued
Sat Jan 25, 2014, 10:39 AM
Jan 2014

in front of the jury..but, Snowden has a problem. 1) He can argue nothing fron Russia. 2) He hasn't told any court in the US that he's retained an attorney regarding his criminal charges....

The two attorneys mentioned on this thread are not his retained counsel, and that's a good thing, since neither one of them seems to be offering good legal advice to the criminal client.

 

1000words

(7,051 posts)
3. He's not coming back. Way too much has to change ...
Fri Jan 24, 2014, 05:11 PM
Jan 2014

for him to give over the leverage he now enjoys. Fundamental changes that I don't see happening for quite a while.

sabrina 1

(62,325 posts)
12. Shocker is right. They become less and less believable with each new deception they put forth.
Fri Jan 24, 2014, 05:44 PM
Jan 2014

I wonder if any of them ever thought of just telling the truth, or better yet, DON'T violate the US Constitution and/or support anyone who does. This would have eradicated the need for all the Whistle Blowers over the past decade, and they wouldn't have to be so desperate to try to silence them.

Another suggestion for them, WHEN a person, like Drake eg, comes forward to report crimes, begin investigations of the CRIMES rather than the messengers. Because the odds are that there will be more Whistle Blowers reporting crimes until there is some accountability.

Seems simple enough to me. If you have nothing to hide why are you all so afraid?

Progressive dog

(6,905 posts)
13. He would have to come home first
Fri Jan 24, 2014, 06:34 PM
Jan 2014

to worry about whether he'd get a public trial.
Public trials, where secrets can be disclosed without penalty, for disclosing secrets don't seem like a smart idea.
Kirakou wasn't tried, he pled guilty, there was no jury.

jeff47

(26,549 posts)
15. The part she's wrong about is illegal activities can not be classified.
Fri Jan 24, 2014, 06:52 PM
Jan 2014

Sure, people are going to say "But (intelligence agency) classified (illegal act)!!!". Slapping "SECRET" on a document doesn't mean it's legal to classify it.

If the material could not be classified because it was illegal, then it's not a crime to leak the material.

So if Snowden and company are correct and the documents show illegal programs, Snowden can not be convicted for releasing them. So yes, he would have a "whistleblower" defense, even if it's not labeled "whistleblower".

AZ Progressive

(3,411 posts)
21. "Washington establishment promoting the “let him make his case in court” is deliberately deceiving"
Fri Jan 24, 2014, 07:53 PM
Jan 2014

Isn't that what Republicans most often do? Tell the public bullshit relying on the fact that most people don't do their own research and check the facts.

We are truly in the dark ages of politics.

struggle4progress

(118,295 posts)
23. Radack's WSJ article seems to be behind a paywall. But the excerpts from her article suggest
Fri Jan 24, 2014, 09:25 PM
Jan 2014

Last edited Fri Jan 24, 2014, 10:06 PM - Edit history (1)

it is misleading and inaccurate in a number of ways

Let's first notice Radack's beatification of St Kiriakou as "the first CIA officer to tell the media about waterboarding"

Sadly, to portray Kiriakou thus requires a substantial dishonesty: Kiriakou was singing the praises of waterboarding, and in order to shine a more favorable light upon it, he lied that it was wonderfully effective, claiming in a 10 December 2007 ABC interview with Brian Ross that a single waterboard session broke Abu Zubaydah. In fact, it later developed that this, like much of what Kiriakou said, turned out to be false; Abu Zubaydah was waterboarded at least 83 times, with no actionable intelligence resulting

That wasn't whistle-blowing: it was pro-torture cheerleading, heavily salted with outright fabrication

I would have been happy to see torture proponents like Kiriakou prosecuted for such activity -- but, unfortunately, being a shithead, who lies to mass media in order to give torture a rosy reputation, isn't against the law and is probably covered by our long tradition of free speech

Kiriakou was prosecuted for providing a reporter with the name of an undercover CIA agent in the summer of 2008, among other charges. The statutes alleged to have been violated included 50 U.S.C. 421(a) (part of the Reagan-era Intelligence Identities Protection Act); 18 U.S.C. 793(d) (incorporating language from the original Espionage Act of 1917 but with limitations from 1950 to persons having such information lawfully) and 18 U.S.C. 1001(a)(1) (criminalizing certain false statements and concealments of material fact)

Choosing to bargain, Kiriakou finally pleaded guilty to violation of the Intelligence Identities Protection Act, so it seems somewhat disingenuous to complain "he could not tell the jury about his lack of intent" -- and this is not Radack's accidental failure to learn the facts, as she worked on his defense

Let's turn next to the case of Thomas Drake. Drake was a legitimate whistle-blower, and his case teaches us something that every new generation (for some reason) apparently must learn anew: if you accuse others of improper behavior, you'll be much better off if your nose is squeaky clean. There are multiple historical examples, including the story of how a big bank got even with Eliot Spitzer for his investigation. Those who remember the sixties will recall how many activists got busted for pot-possession -- that probably wasn't an accident

Drake and his co-whistle-blowers kept their noses clean, played by the book, and won their round with the NSA handily: they had exposed a billion-dollar blunder and the program was cancelled -- but in a hush-hush manner. But Drake (properly in my view) thought the matter deserved more public attention. At this point, Drake strayed from the playbook and took the matter to a reporter, leading to a news story that enraged a lot of people who had egg on their faces -- because a billion-dollar blunder leaves a helluva lotta folk with egg on their faces. The whistle-blowers' homes were raided in 2007

No charges against Drake Drake's co-whistle-blowers William Binney and J. Kirk Wiebe developed, and they were eventually issued letters of immunity by the DoJ. Now, exposing a billion-dollar blunder can create another billion-dollars worth of ill-will -- so if you mistakenly dot your tees and cross your eyes, then somebody offended will try to use that against you. Though most charges against Drake were thrown out by a federal judge, plenty of people still hoped to find a smudge on Drake's nose. Finally choosing to bargain, Drake pleaded guilty to misdemeanor misuse of a computer system and was sentenced to a year's probation -- so it seems self-evident that Drake was guilty of no significant criminal act in his discussion with the reporter

The Billion-Dollar-Blunder League plays hardball. Drake and his co-whistleblowers deserve our gratitude, but Drake was extraordinarily naive about institutional politics: there were hundreds or thousands of people angry about that whistleblowing, and the worst of those people lay awake night after night imagining how to get even. The newspaper story gave them a pretext to howl that classified information had been compromised, and you can be sure they all loved cooking up juicy tales to support their howls. The established whistleblower procedures provide some cover for whistleblowers -- but once outside the playbook, cover will be much more scarce. Once an investigation is in motion, every dotted tee and crossed eye will be scrutinized

Radack, of course, also worked on Drake's defense, and perhaps it is natural for her as a lawyer to imagine that the problems here all trace to the Espionage Act of 1917 (though Drake was actually indicted under a 1950s revision of the Act). And further revision of 18 USC 793 may indeed be appropriate -- although Radack's complaint, that the law doesn't take intent into account, fails to note that the law seems deliberately written so as to exclude defenses such as "Oops! I lost all those documents and have no idea how they came into the hands of the enemy: that certainly wasn't my intent"


 

msanthrope

(37,549 posts)
47. Well..she forgets something primal...Snowden can't argue ANYTHING from Russia. Which is why
Sat Jan 25, 2014, 10:41 AM
Jan 2014

it is a good thing she is not his criminal defense attorney.

AND...she is incorrect. He can argue whistleblower status. If she doesn't know how to do that then Eddie needs criminal counsel that can figure this out. Shit...I'll tell her how to do it for free.

 

davidn3600

(6,342 posts)
28. Snowden will never come back and I dont blame him one bit
Fri Jan 24, 2014, 11:08 PM
Jan 2014

Federal laws are so skewed into the government's favor. The feds can put you away for anything. The average American commits 3 felonies a day.

struggle4progress

(118,295 posts)
38. I don't think I'll take author Harvey Silverglate's word for that
Sat Jan 25, 2014, 01:59 AM
Jan 2014

I looked briefly at his website, where (for example) I was informed that poor Diane Huang was convicted of receiving lobsters packaged in clear plastic bags, contrary to the laws of Honduras -- but the US DOJ website says she and others were convicted in 2000 of smuggling and conspiracy

Similarly, Silverglate tells the sad sad story of attorney Philip Russell, charged with obstruction of justice because he destroyed child pornography images found on a church employee's laptop at his wife's church. Unfortunately for Russell, there was an ongoing police investigation into the church employee, who was determined to have sexually abused children and transported child prostitutes. "Russell pleaded guilty .. to knowing about a felony but not reporting it", and I think he's lucky to have kept his law license

To be guilty of Silverglate's alleged three felonies a day, I'd have to be pretty creative: I might, for example, pull off three in one day, once, by destroying a hard drive containing child pornography images while riding my snowmobile through a designated wilderness areas to smuggle lobster tails somewhere or other -- but it's gonna be tough to do that day after day after day

 

davidn3600

(6,342 posts)
39. Are you sure you know all the laws?
Sat Jan 25, 2014, 02:19 AM
Jan 2014

There are 27,000 pages of federal law. And over 10,000 federal statutes and regulations. And that's according the American Bar Association.

Now, do you believe that every American citizen knows all 10,000+ federal laws? Now this of course is just federal law. that doesn't include state and local laws. And you don't have to have criminal intent to be prosecuted. And ignorance of the law is never an accepted excuse.

There is a reason the United States has by far the largest prison population on this planet. We have more people in our jails and prisons than Russia and China COMBINED!

struggle4progress

(118,295 posts)
40. I've heard this rightwing bullshizz for decades: it's usually pushed by anti-regulatory
Sat Jan 25, 2014, 03:03 AM
Jan 2014

business interests -- and since Silverglate writes for Forbes and WSJ, I'm inclined to suspect he's pandering to that group

It's just not that hard to browse the US Code and get a feeling for what's there: most of it simply won't apply to any one particular individual.

There are 51 Titles in the US

Let's take a random number generator and generate a random number from 1 to 51. I get (say) 12 so let's look at Title 12 (Banking), which has 54 chapters. Let's take a random number generator and generate a random number from 1 to 54. I get (say) 49 so let's look at Chapter 49 (Homeowners Protection), which has 10 sections. It's all about stuff like home mortgages and mortgage insurance. I don't expect to run afoul of the government here, since I'm not a bank and don't issue mortgaes or mortgage insurance

Let's generate another random number from 1 to 51. I get (say) 39 so let's look at Title 39 (Postal Service), which has V parts. Let's take a random number generator and generate a random number from I to V. I get (say) II so let's look at Part II (Personnel), which has 209 sections. It's all about stuff personnel rules for the postal service: chapter 10 covers employment and chapter 12 covers employee-management agreements; chapter 11 doesn't exist. I really don't expect to run afoul of the government here, since I'm not a postal employee or manager

Let's generate another random number from 1 to 51. I get (say) 8 so let's look at Title 8 (Aliens and Nationality), which has 15 chapters. Let's take a random number generator and generate a random number from 1 to 15. I get (say) 7 so let's look at Chapter 7 (Exclusion of Chinese). The Chapter is an empty shell, apparently remaining from the days of widespread anti-Chinese racism in the US: it's all been repealed. I really don't expect to run afoul of the government here, since I'm not an alien, I'm not Chinese, and anyway all these laws vanished long ago

Let's generate another random number from 1 to 51. I get (say) 9 so let's look at Title 9 (Arbitration), which has 3 Chapters. Let's take a random number generator and generate a random number from 1 to 3. I get (say) 3 so let's look at Chapter 3 (Inter-American Convention on International Commercial Arbitration), which has 7 sections. It's all about how international commercial disputes settled in accordance with a 1975 treaty are to treated in US courts. I really don't expect to run afoul of the government here: maybe it would affect me in a civil suit if I got involved in some international commercial dispute

 

msanthrope

(37,549 posts)
48. Lemme ask you something....if you were about to 'whistleblow' wouldn't you
Sat Jan 25, 2014, 10:47 AM
Jan 2014

at least google the term and get some idea of what it meant, legally? Maybe talk to an attorney before you hooked up with James Blond and Rio Glenn??? I mean, at some point before you found yourself in Vlady Putin's cold-as-fuck Russian Winter Wonderland, wouldn't you have at least looked up the statutes????

Latest Discussions»General Discussion»How Snowden is Legally Ba...