[Peace-discuss] Ellsberg: Snowden Would Not Get Fair Trial, Kerry Is Wrong
David Johnson via Peace-discuss
peace-discuss at lists.chambana.net
Mon Jun 2 08:18:46 EDT 2014
Ellsberg: Snowden Would Not Get Fair Trial, Kerry Is Wrong
1snow
Resist! <http://www.popularresistance.org/category/resist/> Criminal
Justice and Prisons
<http://www.popularresistance.org/tag/criminal-justice-and-prisons/>,
Edward Snowden <http://www.popularresistance.org/tag/edward-snowden/>,
Whistleblower <http://www.popularresistance.org/tag/whistleblower/>
By Daniel Ellsberg, www.theguardian.com
<http://www.theguardian.com/commentisfree/2014/may/30/daniel-ellsberg-snowden-fair-trial-kerry-espionage-act>
June 1st, 2014
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Edward Snowden is the greatest patriot whistleblower of our time,
and he knows what I learned more than four decades ago: until the
Espionage Act gets reformed, he can never come home safe and receive
justice.
As the author knows from direct chat-log conversations with him over the
past year, Snowden acted in full knowledge of the constitutionally
questionable efforts of the Obama administration, in particular, to use
the Espionage Act in a way it was never intended by Congress. (Video
still via NBC News)
John Kerry was in my mind Wednesday morning, and not because he had
called me a patriot on NBC News. I was reading the lead story in the New
York Times -- "US Troops to Leave Afghanistan by End of 2016
<http://www.nytimes.com/2014/05/28/world/asia/us-to-complete-afghan-pullout-by-end-of-2016-obama-to-say.html>"
-- with a photo of American soldiers looking for caves. I recalled not
the Secretary of State but a 27-year-old Kerry, asking, as he testified
to the Senate about the US troops who were still in Vietnam and were to
remain for another two years: /How do you ask a man to be the last man
to die for a mistake?/ <https://www.youtube.com/watch?v=yixdveuf0gq>
I wondered how a 70-year-old Kerry would relate to that question as he
looked at that picture and that headline. And then there he was on MSNBC
<http://www.nbcnews.com/politics/first-read/kerry-snowden-coward-traitor-n116366> an
hour later, thinking about me
<http://www.huffingtonpost.com/2014/05/29/daniel-ellsberg-john-kerry-snowden_n_5412980.html>,
too, during a round of interviews about Afghanistan that inevitably
turned to Edward Snowden ahead of my fellow whistleblower's own
primetime interview that night:
There are many a patriot -- you can go back to the Pentagon Papers
with Dan Ellsberg and others who stood and went to the court system
of America and made their case. Edward Snowden is a coward, he is a
traitor, and he has betrayed his country. And if he wants to come
home tomorrow to face the music, he can do so.
On the Today show and CBS, Kerry complimented me again -- and said
Snowden "should man up and come back to the United States"
<http://www.theguardian.com/world/2014/may/28/snowden-return-us-kerry-face-charges-espionage> to
face charges. But John Kerry is wrong, because that's not the measure of
patriotism when it comes to whistleblowing, for me or Snowden, who is
facing the same criminal charges I did for exposing the Pentagon Papers.
As Snowden told Brian Williams on NBC later that night
<http://www.theguardian.com/world/2014/may/29/edward-snowden-interview-breaking-law-was-only-option-says-whistleblower> 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
havestrongly
<http://books.google.com/books?id=4k0cwvr2fnec&pg=pt504&lpg=pt504&dq=melville+nimmer,+%2522national+security+issues+v.+free+speech,%2522+stanford+law+review&source=bl&ots=_2nvbbwjeh&sig=scqk5ajpjwujjqjqvxyxfui07c4&hl=en&sa=x&ei=aoehu6hjc4llsaslrykoag&ved=0ccoq6aewaa#v=onepage&q=Melville%2520Nimmer%252C%2520%2522National%2520Security%2520Issues%2520v.%2520Free%2520Speech%252C%2522%2520Stanford%2520Law%2520Review&f=false>
argued <http://www.fas.org/sgp/library/edgar.pdf> 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
<https://pressfreedomfoundation.org/blog/2014/02/guilty-plea-fox-news-leak-case-shows-why-espionage-act-prosecutions-are-inherently>,
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
<http://www.theguardian.com/world/2013/aug/21/bradley-manning-sentencing-wikileaks-live>.
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 I know from direct chat-log conversations with him over the past
year, Snowden acted in full knowledge of the constitutionally
questionable efforts of the Obama administration, in particular, to use
the Espionage Act in a way it was never intended by Congress: as the
equivalent of a British-type Official Secrets Act criminalizing any and
all unauthorized release of classified information. (Congress has
repeatedly rejected proposals for such an act as violating the First
Amendment protections of free speech and a free press; the one exception
to that was vetoed by President Clinton in November 2000, on
constitutional grounds.)
John Kerry's challenge to Snowden to return and face trial is either
disingenuous or simply ignorant that current prosecutions under the
Espionage Act allow no distinction whatever between a patriotic
whistleblower and a spy. Either way, nothing excuses Kerry's slanderous
and despicable characterizations of a young man who, in my opinion, has
done more than anyone in or out of government in this century to
demonstrate his patriotism, moral courage and loyalty to the oath of
office the three of us swore: to support and defend the Constitution of
the United States.
Related Posts:
* NBC News Shows Why Viewers Can't Trust Them
<http://www.popularresistance.org/nbc-news-shows-why-viewers-cant-trust-them/>May
31, 2014
* Edward Snowden Interview
<http://www.popularresistance.org/edward-snowden-interview-with-vanity-fair/>April
10, 2014
* Snowden Says He Was a Spy, Not Just an Analyst
<http://www.popularresistance.org/snowden-says-he-was-a-spy-not-just-an-analyst/>May
28, 2014
* Why Won't Kerry Leave Syria Alone?
<http://www.popularresistance.org/why-wont-kerry-leave-syria-alone/>May
20, 2014
* CODE PINK Mocks Egyptian Dictator Sisi Outside Of US Chamber Of...
<http://www.popularresistance.org/code-pink-mocks-egyptian-dictator-sisi-outside-of-us-chamber-of-commerce/>April
16, 2014
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