Posts Tagged ‘Espionage Act’

Should good deeds be allowed to go unpunished?

August 22, 2013

There are many people who think that Edward Snowden did a public service in revealing lying and abuse of power by the National Security Agency, but still think he should be punished for revealing secret information.

snowden.spy.paradoxKevin Drum, who writes for Mother Jones, argued the other day that no government can afford to tolerate the workings of its secret espionage organizations being made public.  On the other hand, he wrote, Snowden has revealed a lot of things that are important for the public to know and this information never would have been made public otherwise.

I believe that 30-year-old contractors shouldn’t be the ones who decide which secrets to keep and which ones to reveal. I also believe that, overall, Snowden has been fairly careful about what he’s disclosed and has prompted a valuable public conversation.

So how do you prevent an epidemic of Snowdens while still allowing the salubrious sunlight of the occasional Snowden?  The answer to the former is that intelligence workers need to be afraid of prosecution if they reveal classified documents. I t can’t be a casual act, but a deeply considered one that’s worth going to prison for.  The answer to the latter is that prosecution needs to be judicious.

There’s no question in my mind that Snowden should be prosecuted for what he did.  That’s the price of his actions.  But he shouldn’t be facing a lifetime in a Supermax cell.  The charge against him shouldn’t be espionage, it should be misappropriation of government property or something similar.  Something that’s likely to net him a year or three in a medium-security penitentiary.

via Mother Jones.

This reasoning would make more sense to me if, in fact, the U.S. government did systematically prosecute people who leak classified information.   But in fact classified information is leaked all the time—the latest example being how the U.S. government detected the al Qaeda plot to attack U.S. embassies (assuming that the leaked information was not an attempt to mislead).   Leaking sensitive information that makes the government look good is common and accepted.  Only the leakers who make the government look bad are prosecuted.

snowden.quote_nRobert Zubrin, writing for National Review, had a much better idea:  Offer Edward Snowden immunity from prosecution in return for testimony before a congressional committee.  He reasoned that if Snowden has all this vital secret knowledge, it is better from the standpoint of national security to have him under U.S. jurisdiction than Russian jurisdiction.

There are two important kinds of information that Snowden might reveal.  The first is information of value to America’s adversaries in operations against the United States, its armed forces, and its intelligence agencies.  The second is information of value to Congress and the American public in assessing the NSA’s domestic operations and in taking action, if necessary, to uphold the Constitution and stop NSA malfeasance.

In Moscow, Snowden is well situated to provide the first type of information to our enemies and poorly situated to provide the second to us.  If he were here, on the other hand, he would be well positioned to provide Americans with the second kind of information, and his opportunities to provide our nation’s foreign adversaries with the first kind would be most limited.

So we need to get Snowden back, and the only way to get him back is to set forth terms that induce him to return voluntarily. […]

One must therefore ask the conductors of the chorus chanting “Death to Snowden” why they prefer to have the analyst talking to Russia, Iran, and North Korea rather than to Congress.  Is it because the NSA regards the holders of America’s purse strings as the greater threat?  If so, it would appear that the agency’s leadership has misplaced its priorities.

On the other hand, Snowden may be lying, or grossly exaggerating, in his accusations of deeply subversive anti-constitutional actions by the NSA.  If so, he has done real harm to American freedom by chilling the public with unnecessary fear of a nonexistent panopticon state.  Such falsehoods therefore need to be refuted.

The NSA has issued denials.  Unfortunately, however, because the agency previously lied to Congress and the public about the very existence of the domestic-spying program, those denials have no credibility.  If the NSA is now being truthful, it needs to establish that by taking Snowden on in open confrontation.

via National Review Online.

And maybe after Snowden gets finished testifying to Congress, he should testify to a special prosecutor and a grand jury.  I would think there would be a rich field for investigation just of financial corruption, given the lack of supervision of the vast sums that the secret surveillance agencies handle.


“No Bill of Attainder, no ex post facto Law…”

December 9, 2010

The US attorney general, Eric Holder,  has announced that the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation” into the latest Assange-facilitated leak under Washington’s Espionage Act.

Asked how the US could prosecute Assange, a non-US citizen, Holder said, “Let me be clear. This is not saber-rattling,” and vowed “to swiftly close the gaps in current US legislation…”

In other words the espionage statute is being rewritten to target Assange, and in short order, if not already, President Obama – who as a candidate pledged “transparency” in government – will sign an order okaying the seizing of Assange and his transport into the US jurisdiction. Render first, fight the habeas corpus lawsuits later.

via CounterPunch.

Before there was a Bill of Rights guaranteeing freedom of speech, freedom of the press, freedom of worship and the right to keep and bear arms, the United States Constitution protected even more basic freedoms.  The Constitution banned ex post facto laws and bills of attainder, guaranteed the right of habeas corpus and defined the crime of treason in narrow and specific terms.

These were the basic principles of a nation founded on the principle of the rule of law – a principle that in the English-speaking world went back to the Great Charter of 1215 and the English Bill of Rights of 1688.  The principle of the rule of law is that no matter how much you anger your rulers, they can’t do anything to you unless you break an actual law with a specific punishment.

The rule of law means that a government can’t punish you for breaking a law that was passed after the fact (ex post facto law).  It can’t pass a law aimed at you personally (bill of attainder).  If you are arrested, you have a right to be brought before a judge and told what specific law you are accused of breaking (habeas corpus).  And you can’t be charged with treason just because you’ve done something that the government didn’t like.

All this has been turned on its head in the case of Julian Assange and Wikileaks.  Eric Holder says that he’s made up his mind to charge Julian Assange with something – although as of now he hasn’t been able to specify a law he has broken.  And if there is no law on the books, he will propose something “to close the gaps in U.S. legislation.”

Senate Minority Leader Mitch McConnell said Assange should be prosecuted to the fullest extent of the law and, “if that becomes a problem, we need to change the law.” [Added 12/11/10]

Holder and others have invoked the Espionage Act of 1917, which was passed at a time when the nation had gone even crazier than it has now.  The Islamophobia of today is nothing compared to the Germanophobia of that era.  The law has never been used against journalists, and for good reason.  If the government can define anything whosoever as a secret, and can punish anyone who reveals its secrets, there are no limits on its power.  How can we the people hold our government accountable if it can keep us from knowing what it does?