3 ms·

Sure the US wants a trial, but it's important to note that in Espionage Act cases it'd basically be a show trial. Whistleblowing, intent, public interest, even

by lhl 12y ago

Sure the US wants a trial, but it's important to note that in Espionage Act cases it'd basically be a show trial. Whistleblowing, intent, public interest, even constitutional defenses are inadmissible [1]. In fact the prosecution does not even need to show even that leaked information could have been potentially harmful. If Snowden did go to trial, his only hope would probably be either be a media circus (this did not seem to help any of his predecessors) or jury nullification. [2] [1] https://pressfreedomfoundation.org/blog/2013/12/if-snowden-returned-us-trial-all-whistleblower-evidence-would-likely-be-inadmissible https://pressfreedomfoundation.org/blog/2013/12/if-snowden-r... [2] http://www.theatlantic.com/politics/archive/2013/07/would-an-american-jury-even-convict-edward-snowden/277830/ http://www.theatlantic.com/politics/archive/2013/07/would-an...

Amezarak 12y ago
That neither surprises nor outrages me. The purpose of a trial is to determine whether or not you broke the law, not why you broke the law. That can be relevant in your sentencing, but why you broke the law is not relevant as to whether you broke the law. That does not in any way make it a "show trial." In an ideal world we might have stronger whistle-blower protections in the Espionage Act, but for the moment it works like most other laws: the reason you violated the law may mean the prosecutor decides not to pursue the case or mean you get a light sentence, but the trial is not about why you did it, but whether you did it.
- lhl 12y ago
  I wouldn't have a problem either if all the far graver crimes/criminals that Snowden's leaks revealed would also be prosecuted with as rigorously but we know that's not going to happen. We're not talking about why or whether you broke the law, but about how much power you have within the system. If there's no surprise or outrage, that just means the nominal raison d'être of the founding fathers / US Constitution is so far dead that it doesn't matter anymore. Sadly, this is most likely the case.
  - Amezarak 12y ago
    > I wouldn't have a problem either if all the far graver crimes/criminals that Snowden's leaks revealed would also be prosecuted with as rigorously but we know that's not going to happen. What specific crimes could we use to prosecute specific people? What the NSA is doing might be illegal and unconstitutional, but that doesn't mean there's a legal framework in place for punishing people specifically. I believe there are cases still moving in the judicial system to prove NSA actions were illegal and/or unconstitutional and to put an end to those actions. >If there's no surprise or outrage, that just means the nominal raison d'être of the founding fathers / US Constitution is so far dead that it doesn't matter anymore. Sadly, this is most likely the case. Calling it nominal is certainly the right usage. The founding fathers/US constitution offered the majority of the population no power whatsoever within the system. And the ink was hardly dry on the paper before the same founding fathers were flagrantly violating the rights of even propertied white men with, e.g., the Sedition Act. People went to prison for the crime of criticizing John Adams. I'd say we're much better off now. Rather than saying it's "so far dead that it doesn't matter anymore", I'd say it's entering the prime of its life in the long view.
- AJ007 12y ago
  Why absolutely is relevant. If there is a dead man in your home, did he break in and threaten you or was it someone who you invited in and then killed? It is appalling for a defendant to be prevented from giving his story. Generally, a prosecutor wants a defendant to take the stand as to trip them up in their lies. Never in Espionage Act cases. Why? The context of the Espionage Act absolutely matters. Daniel Ellsberg, Drake, Manning were not able to speak for themselves at trial. Lawyers would point out that a law from 1917 is wildly being taken out of context by US prosecutors. In all of these leaker cases, including Snowdens, the government was revealed to be involved in incredible immoral and illegal activities, and sometimes even atrocities. The US Prosecutors think that is irrelevant. To an amoral society it is.
  - Amezarak 12y ago
    > The context of the Espionage Act absolutely matters. Daniel Ellsberg, Drake, Manning were not able to speak for themselves at trial. They absolutely were. Both Russo and Ellsberg testified about their reasons for leaking the Pentagon Papers and their experiences in Vietnam. Manning, whose case much different since it was tried by the military's judicial system, also got a chance to speak for himself. Manning pleaded guilty to ten charges and gave a long statement, in part explaining why he did it. There was also substantial testimony during the trial for the remaining charges explaining why he did it. Drake never went through the full process because the government dropped the charges. > Why absolutely is relevant. If there is a dead man in your home, did he break in and threaten you or was it someone who you invited in and then killed? That not a "here's why I broke the law", that's a "I didn't actually break the law, it was self defense and not first degree murder."
csandreasen 12y ago
The excuse that he can't make a case in court is way more nuanced than your linked article indicates. Snowden has been charged under two counts of the Espionage Act (along with theft of government property): Section 793(d) and Section 798(a)(3) [1]. The Freedom of Press Foundation article cites the John Kiriakou, Stephen Kim and Bradley/Chelsea Manning, who were all charged under 793(d), as well as Thomas Drake, who was charged under 793(e). 793(d) reads as follows (emphasis mine)[2]: (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it 793(e) is similarly worded. It's not that the government doesn't need to show damage - they can't. It's not applicable to the charges. The law is written in favor of the leaker - so long as he or she believed that what they were disclosing would not cause harm to the US, they can't be found guilty under this law. They could reveal nuclear launch codes to the Russians and in the process destroy the entire state of Ohio; so long as they didn't believe that what they were doing would cause harm, they're not guilty under Section 793. Snowden could easily take the stand and say "I didn't believe this would cause any harm. On the contrary, I believe what I leaked was of benefit to the US." The problem for him is that it would probably be hard to find a jury who believed that. 798(a)(3) is ambiguously worded[3] (emphasis mine): Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information... ... (3) concerning the communication intelligence activities of the United States or any foreign government... I'm not sure how the courts would decide to interpret the statue. Is it "(communicates...|publishes|uses) in any manner..." or "(communicates...|publishes|uses in any manner...)"? In the former case, the US government does indeed need to show damage; in the latter case they don't. Since there's not a whole lot of case law on this, it's tough to say. I'd imagine Snowden's defense (if he ever faces trial) would probably push to have it interpreted the first way. Note also that this law only concerns specific types of classified information, while 793(d) is more broad in what it covers. It's also worth noting that the whole "Snowden couldn't get a fair trial" meme is being pushed by Glenn Greenwald (the primary beneficiary of the Snowden leaks) and people close to him. In the case of your article, Trevor Timm is a co-founder and board member of the Freedom of Press Foundation; Greenwald is also a founder and board member. And, incidentally, Edward Snowden (who would benefit the most from public perception that he couldn't get a fair trial) is also a board member[4]. [1] http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_U.S.%20news/US-news-PDFs/Snowden-Complaint.pdf http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_U.S.%20new... [2] http://www.law.cornell.edu/uscode/text/18/793 http://www.law.cornell.edu/uscode/text/18/793 [3] http://www.law.cornell.edu/uscode/text/18/798 http://www.law.cornell.edu/uscode/text/18/798 [4] https://pressfreedomfoundation.org/about/board https://pressfreedomfoundation.org/about/board

by lhl 12y ago

Amezarak 12y ago

That neither surprises nor outrages me. The purpose of a trial is to determine whether or not you broke the law, not why you broke the law. That can be relevant in your sentencing, but why you broke the law is not relevant as to whether you broke the law. That does not in any way make it a "show trial." In an ideal world we might have stronger whistle-blower protections in the Espionage Act, but for the moment it works like most other laws: the reason you violated the law may mean the prosecutor decides not to pursue the case or mean you get a light sentence, but the trial is not about why you did it, but whether you did it.

lhl 12y ago
I wouldn't have a problem either if all the far graver crimes/criminals that Snowden's leaks revealed would also be prosecuted with as rigorously but we know that's not going to happen. We're not talking about why or whether you broke the law, but about how much power you have within the system. If there's no surprise or outrage, that just means the nominal raison d'être of the founding fathers / US Constitution is so far dead that it doesn't matter anymore. Sadly, this is most likely the case.
- Amezarak 12y ago
  > I wouldn't have a problem either if all the far graver crimes/criminals that Snowden's leaks revealed would also be prosecuted with as rigorously but we know that's not going to happen. What specific crimes could we use to prosecute specific people? What the NSA is doing might be illegal and unconstitutional, but that doesn't mean there's a legal framework in place for punishing people specifically. I believe there are cases still moving in the judicial system to prove NSA actions were illegal and/or unconstitutional and to put an end to those actions. >If there's no surprise or outrage, that just means the nominal raison d'être of the founding fathers / US Constitution is so far dead that it doesn't matter anymore. Sadly, this is most likely the case. Calling it nominal is certainly the right usage. The founding fathers/US constitution offered the majority of the population no power whatsoever within the system. And the ink was hardly dry on the paper before the same founding fathers were flagrantly violating the rights of even propertied white men with, e.g., the Sedition Act. People went to prison for the crime of criticizing John Adams. I'd say we're much better off now. Rather than saying it's "so far dead that it doesn't matter anymore", I'd say it's entering the prime of its life in the long view.
AJ007 12y ago
Why absolutely is relevant. If there is a dead man in your home, did he break in and threaten you or was it someone who you invited in and then killed? It is appalling for a defendant to be prevented from giving his story. Generally, a prosecutor wants a defendant to take the stand as to trip them up in their lies. Never in Espionage Act cases. Why? The context of the Espionage Act absolutely matters. Daniel Ellsberg, Drake, Manning were not able to speak for themselves at trial. Lawyers would point out that a law from 1917 is wildly being taken out of context by US prosecutors. In all of these leaker cases, including Snowdens, the government was revealed to be involved in incredible immoral and illegal activities, and sometimes even atrocities. The US Prosecutors think that is irrelevant. To an amoral society it is.
- Amezarak 12y ago
  > The context of the Espionage Act absolutely matters. Daniel Ellsberg, Drake, Manning were not able to speak for themselves at trial. They absolutely were. Both Russo and Ellsberg testified about their reasons for leaking the Pentagon Papers and their experiences in Vietnam. Manning, whose case much different since it was tried by the military's judicial system, also got a chance to speak for himself. Manning pleaded guilty to ten charges and gave a long statement, in part explaining why he did it. There was also substantial testimony during the trial for the remaining charges explaining why he did it. Drake never went through the full process because the government dropped the charges. > Why absolutely is relevant. If there is a dead man in your home, did he break in and threaten you or was it someone who you invited in and then killed? That not a "here's why I broke the law", that's a "I didn't actually break the law, it was self defense and not first degree murder."

csandreasen 12y ago

The excuse that he can't make a case in court is way more nuanced than your linked article indicates. Snowden has been charged under two counts of the Espionage Act (along with theft of government property): Section 793(d) and Section 798(a)(3) [1]. The Freedom of Press Foundation article cites the John Kiriakou, Stephen Kim and Bradley/Chelsea Manning, who were all charged under 793(d), as well as Thomas Drake, who was charged under 793(e). 793(d) reads as follows (emphasis mine)[2]: (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it 793(e) is similarly worded. It's not that the government doesn't need to show damage - they can't. It's not applicable to the charges. The law is written in favor of the leaker - so long as he or she believed that what they were disclosing would not cause harm to the US, they can't be found guilty under this law. They could reveal nuclear launch codes to the Russians and in the process destroy the entire state of Ohio; so long as they didn't believe that what they were doing would cause harm, they're not guilty under Section 793. Snowden could easily take the stand and say "I didn't believe this would cause any harm. On the contrary, I believe what I leaked was of benefit to the US." The problem for him is that it would probably be hard to find a jury who believed that. 798(a)(3) is ambiguously worded[3] (emphasis mine): Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information... ... (3) concerning the communication intelligence activities of the United States or any foreign government... I'm not sure how the courts would decide to interpret the statue. Is it "(communicates...|publishes|uses) in any manner..." or "(communicates...|publishes|uses in any manner...)"? In the former case, the US government does indeed need to show damage; in the latter case they don't. Since there's not a whole lot of case law on this, it's tough to say. I'd imagine Snowden's defense (if he ever faces trial) would probably push to have it interpreted the first way. Note also that this law only concerns specific types of classified information, while 793(d) is more broad in what it covers. It's also worth noting that the whole "Snowden couldn't get a fair trial" meme is being pushed by Glenn Greenwald (the primary beneficiary of the Snowden leaks) and people close to him. In the case of your article, Trevor Timm is a co-founder and board member of the Freedom of Press Foundation; Greenwald is also a founder and board member. And, incidentally, Edward Snowden (who would benefit the most from public perception that he couldn't get a fair trial) is also a board member[4]. [1] http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_U.S.%20news/US-news-PDFs/Snowden-Complaint.pdf http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_U.S.%20new... [2] http://www.law.cornell.edu/uscode/text/18/793 http://www.law.cornell.edu/uscode/text/18/793 [3] http://www.law.cornell.edu/uscode/text/18/798 http://www.law.cornell.edu/uscode/text/18/798 [4] https://pressfreedomfoundation.org/about/board https://pressfreedomfoundation.org/about/board