Balkinization  

Thursday, May 29, 2014

Ellsberg and Snowden

Stephen Griffin


I just posted a revision to an overview of the law of executive power I did for the forthcoming Oxford Handbook of the U.S. Constitution.  I was honored to be asked to contribute on such an important topic.  Given the limited space I had, I did more revisions than I normally do in the process of thinking through many issues I had not previously come to grips with.  So I hope to do some posts “filling out” some parts of the argument that obviously need more attention than I could give them in the piece.

 

That said, the controversy over Michael Kinsley’s review of Glenn Greenwald’s book reminded me that I’ve been meaning for some time to note some obvious contrasts between the leakers Ellsberg and Snowden.  These occurred to me because I researched the Vietnam War in the process of writing Long Wars and the Constitution.  But these contrasts don’t seem widely known.

 

Is Snowden like Ellsberg?  Not really.  Daniel Ellsberg, widely admired for his analytical ability and knowledge of the Vietnam War, worked for years at the highest levels of government, advising principal cabinet officers like Robert McNamara.  Although this is not emphasized in summaries of his career I have seen, he continued to advise government officials like Henry Kissinger from his post at the RAND Corporation in the months that followed Nixon’s election in 1968.  After his opinion on the war changed, Ellsberg was thus in an excellent position to judge whether there were any harmful national security secrets in the DOD historical study he gave to the New York Times, known as the Pentagon Papers.  Ellsberg had to assume he might be prosecuted and the lack of such secrets would constitute a defense.

 

When the government sued the NYT and WaPo for a prior restraint, they tried to make the case that critical secrets had been revealed (focusing on the NSA!).  But there wasn’t a good case for this (although I understand David Rudenstine has argued to the contrary).  The same obviously isn’t true for Snowden.  I don’t know how to characterize his job, but Snowden was obviously light years from the kind of circles Ellsberg moved in and of course did not have Ellsberg’s access or a comprehensive knowledge of national security matters similar to Ellsberg’s.

 

The publication of the Pentagon Papers is usually put down as one of American journalism’s greatest triumphs.  But I think we can now see it involved a good measure of luck as well.  The information in the Papers was no longer significant to national security because it was old.  But it was of outstanding political relevance, because of the big debate at the time over how we got involved in Vietnam.  That’s why the Papers were a genuine scoop and why Nixon prosecuted.  To his aides, Nixon compared Ellsberg to Alger Hiss, saying “’the papers themselves didn’t make any difference.  They were old and outdated and unimportant (to national security); the key thing was that we got across the point that Hiss was a spy, a liar and a Communist.  That was the issue.  The question on this one [Ellsberg] is basically the same thing.’” (Kimball, Nixon’s Vietnam War, 256-57)

 


Snowden didn’t have Ellsberg’s ability to evaluate whether the information he collected would damage national security.  That’s why his actions strike me as irresponsible.  In the end, Ellsberg knew what he was doing.  Snowden did not.  Moreover, there are many significant differences between the Cold War and Vietnam and the war we began fighting after 9/11.  The most important difference I’ll highlight here is reflected in Nixon’s comments.  From their point of view, the war Johnson and Nixon were fighting was both external and internal.  Although they were completely wrong, they believed that the domestic anti-war movement was being led by communist agents.  Thus they felt justified in ordering the use of surveillance and other intelligence techniques normally used against foreign enemies against U.S. citizens.  Ellsberg’s trial collapsed when it was revealed that the Nixon administration had burglarized the office of Ellsberg’s psychiatrist, part of Nixon’s effort to discredit the Hiss-like Ellsberg and part of the misdeeds we call Watergate.

 

I simply don’t see the same risk of government overreaching today.  With respect to 9/11, the government has always been secure in the knowledge that, by and large, the public supports the war against Al Qaeda and, despite some early fears, there has never been any evidence of an enemy “fifth column” inside the US.  So, not surprising at least to me, there is no evidence that the government has gone overboard in using the information it has been collecting against its own citizens for nefarious purposes.  The cause of terribly destructive government behaviors like McCarthyism, the fear of communism, is missing.  In addition, all the commentary has been missing the enormous impact the 1975 investigations had on the intelligence agencies.  Believe it or not, the employees in those agencies didn’t enjoy being regarded as Big Brother.  Generally speaking, they wanted to be on the right side of the Constitution and the law.  In the sixties, some people were justified in being paranoid.  But we aren’t living in the sixties.  So count me unimpressed by Snowden and his revelations.

 

 

Comments:

Well, Ellsberg would disagree. To quote him:

[Snowden] is the quintessential American whistleblower, and a personal hero of mine, Leaks are the lifeblood of the republic and, for the first time, the American public has been given the chance to debate democratically the NSA’s mass surveillance programs. Accountability journalism can’t be done without the courageous acts exemplified by Snowden, and we need more like him. . . .

The secrecy system in this country is broken. No one is punished for using secrecy to conceal dangerous policies, lies, or crimes, yet concerned employees who wish to inform the American public about what the government is doing under their name are treated as spies. Our ‘accountability’ mechanisms are a one-sided secret court, which acts as a rubber stamp, and a Congressional ‘oversight’ committee, which has turned into the NSA’s public relations firm. Edward Snowden had no choice but to go to the press with information. Far from a crime, Snowden’s disclosures are a true constitutional moment, where the press has held the government to account using the First Amendment, when the other branches refused.
 

"I simply don’t see the same risk of government overreaching today."

Yes, who would believe that our twenty-first century government might torture its enemies, might spy on essentially all of its citizens, might spy with particular intensity on those of a particular religion, might arrange coordinated attacks on peaceful though inconvenient demonstrators, might arrogate to itself the power of arbitrary assassination? Who but a lunatic?
 

I think SG is correct and Ellsberg wrong though the last paragraph goes a bit too far. There is still a problem of "overreaching" -- which includes violating constitutional limits -- even if we can debate scope and details.

There are various "accountability" mechanisms. There are whistleblower laws in place. The free press is another one. It still is a matter of determining individual cases.

And, in various cases, yes, it is illegal to not make "crimes" known. To take an example, there is a legal obligation to report child abuse. It also is a question what 'dangerous' means, including his belief basic spying (including on allies -- shocked I tell you) is "dangerous" and shouldn't be secret apparently.

I'm wary about the scope of Snowden's disclosures by someone who feels to China and Russia. Do we trust any Joe Smoe here? Ellsberg we have a reason to. DE is to be honored, but even heroes have some mistaken beliefs.





 

"feels" should be "flees"


 

" the key thing was that we got across the point that Hiss was a spy, a liar and a Communist."

Just to point it out, since a lot of people are still in denial about it: Hiss WAS a spy, a liar, and a Communist. Try not to forget that: He really WAS a spy in the employ of the USSR.

It would have been nice if Snowden had had the chops and leisure to just pick out the stuff that exposed the abuses, with nothing mixed in that was harmful to national security. Maybe if the NSA kept two separate databases, one for genuine defense of the country, the other for spying on girlfriends and blackmailing politicians, it would have been easier.

He still did the nation a service.
 

Hindsight is said to be 20-20.* With Ellsberg there has been much hindsight to evaluate what he did. But we don't have enough hindsight as yet to evaluate what Snowden did, especially in making comparisons to Ellsberg. Consider how long it took to accept Ellsberg as a "hero." For Snowden it has been a relatively short period for meaningful hindsight.

*I'm not convinced that hindsight is 20-20; rather it may be better than foresight. Take originalism and the hindsight of over 200 years from 1789-91 for the original Constitution/Bill of Rights and of over 140 years from the Civil War Amendments, in coming up with answers on their meanings back when. The plethora of constitutional scholars, legal historians, ordinary historians and political scientists continue to discover "new evidence."
 

This comment has been removed by the author.
 

You are being far too generous to Ellsberg. The Pentagon Papers provided the wartime enemy a comprehensive description of our grand strategy, what we were and were not willing to do, and the effectiveness of our and their operations. The fact that Ellsberg was an experienced and talented analyst means that he knew precisely what these disclosures would provide the enemy and did it anyway with the express purpose of undermining the domestic war effort.

This was not a "triumph of journalism." Before Vietnam, there is almost no history of American journalists publishing classified diplomatic and military documents from their own country.

If Ellsberg did this in 1942, The NY Times never would have considered publishing these materials, FDR would have properly arrested him for treason, a jury would have convicted him and the Supreme Court would have upheld the conviction. The Supremes upheld treason convictions for far less after WWII.

The only real difference between Ellsberg and Snowden is that Ellsberg was more cognizant of the damage he was causing and Ellsberg released an analysis while Snowden released raw data.
 

My understanding of the legal possibilities may be naive. I am not a lawyer. I keep thinking of Kerry's complaint that Snowden should have "submitted himself to the American system of justice and made his case in court."

Although Ellsburg was presecuted with a ferocity that was unusual for its time, it was pale in comparison to the war on whistleblowers Obama's Justice department has conducted since he was inaugurated. Snowden would surely be prosecuted under the Espionage Act, so his actions and the evidence against him might very well be kept secret. While the prosecutor, defense attorney, and judge were arguing over what might be disclosed to the public, Snowden could be held in prison for years. Prisons are dangerous places; people die there.

Ellsburg was not subject to the provisions of the National Defense Authjorization Act of 2011, which may require that he be detained by the military. In that case he would probably be held in solitary confinement in a military brig, probably for years, with no requirement that he ever be charged or brought to court.

Even without the NDAA, the President has the authority to detain him without charge for many years. See the case of Hose Padilla.

Many people are certain that among the documents Snowden released many are harmful to the national security of the U.S. I'm skeptical. Although my experience with intelligence operations was brief, I became convinced that 95% of classified material should not be classified. I remember seeing one Top Secret document which clearly needed to be kept secret to prevent disclosure of methods. I've never been sure that it was really necessary to prevent the opposition from knowing that we had knowledge of certain technical aspects of their equipment.

In response to the poster who complained that Ellsburg gave the enemy knowledge of our grand strategy, that's poppycock. We did not have a grand strategy. Or, rather, our strategy was to fight a war of attrition at the end of a 10,000 mile supply line against the resident population of both the nation we were in and its neighbor (most "South" Vietnamese preferred their Northern brethren to the stooges we foisted on them, that they were Communists notwithstanding). That was quite divorced from reality.
 

This comment has been removed by the author.
 

I don't know about a number as high as 95% but it's pretty well accepted we over-classify.

But, Michael Kinsley is correct at least to the extent that some of these decisions are for "we the people" to make, even if some of this includes delegating some of the choices (with checks) to "the government."

Also, sharing Shag's opinion as to 20/20, we are at the stage where it is getting easy to spread to a mass audience intricate details of that 5% and again I realize "the government" is dangerous and all, but so are some individual bloggers if such decisions are made and the person is not even going to submit him or herself to legal processes, but instead go to Russia or somewhere.

Padilla was labeled as an "enemy combatant," who went overseas for training and was convicted of being involved in acts with terrorists. And even beyond that, it is unclear to me that Snowden, especially with the same level of public scrutiny and support he is getting, would be treated in the same way. Manning was brought to trial. To the degree he was mistreated, that is something we should face.

Still not clear how RUSSIA is the only place he could go. Your average draft dodger, e.g., managed to avoid process w/o going to Russia. And, the specter of what the government could do in Ellsberg's day was not somehow so benign that people could have said the same thing on some level.

I'd add that the same could have been said by many actors of civil disobedience. MLK was mistreated and lived in a racist age where state governments aided and abetted harm to blacks up to the level of murder. Any number of examples can be cited.
 

Roger:

"In response to the poster who complained that Ellsburg gave the enemy knowledge of our grand strategy, that's poppycock. We did not have a grand strategy. Or, rather, our strategy was to fight a war of attrition at the end of a 10,000 mile supply line against the resident population of both the nation we were in and its neighbor (most "South" Vietnamese preferred their Northern brethren to the stooges we foisted on them, that they were Communists notwithstanding). That was quite divorced from reality."

The fact that LBJ employed a poor grand strategy does not mitigate Ellsberg's treason. Indeed, disclosing our ineptitude to the enemy gave them more to exploit than if the strategy was sound.

The latter part of your statement merely demonstrates the effectiveness of enemy propaganda - both foreign and domestic - during that war. You may recall that the North Vietnamese did not come to power through an election like the Nicaraguan Contras, but instead by conquest slaughtering thousands in the South in multiple military offensives and then shipping off tens of thousands more South Vietnamese to reeducation camps, while tens of thousands of others voted with their feet by fleeing the country.
 

If its 'treason' to inform we the people of subterfuge on the part of our elected officials, then I echo Patrick Henry we should make the most of it. Democracy cannot function when the government so misleads the public. We cannot debate or consent to whether we should expand military operations to neighboring nations in a conflict when the government goes ahead and secretly does that, we cannot debate whether we should invade a country to preempt threats from weapons of mass destruction when the government misleads as to the existence of those weapons, and we cannot debate whether certain domestic surveillance programs are warranted in a war on terror when the government engages in those programs in secret. These actions undermine the very idea of consent of the governed upon which this nation is founded in a way our enemies in those conflicts could never hoped to.
 

but instead by conquest slaughtering thousands in the South in multiple military offensives and then shipping off tens of thousands more South Vietnamese to reeducation camps, while tens of thousands of others voted with their feet by fleeing the country.
# posted by Blogger Bart DePalma : 10:34 AM


Oddly, the fighting seemed to stop when we left. If the hatred of the communists was as great as you seem to think it was, the fighting would have continued. There was nothing stopping the Vietnamese from rebelling against the communists in the same way that they rebelled against us.
 

Mr. W:

Precisely what "subterfuge" was the Johnson administration offering during the Vietnam war? Telling the people that our military operations were more successful than government leaders believed in private?

That is a "subterfuge" which every wartime political leader has by necessity engaged in to boost public morale since the dawn of time (see Lincoln, Wilson, Roosevelt and Bush for American examples), and in NO WAY justifies Ellsworth disclosing our grand strategy to a wartime enemy with the express intent of harming public support for our soldiers in the field.

No one today is arguing that our people cannot debate the wisdom of a war. Neither the Johnson, Bush or Obama administrations were engaged in the Wilson administration's persecutions of war critics for sedition. You are offering a red herring to defend treason.
 

BB: "Oddly, the fighting seemed to stop when we left."

That is what successful conquests accomplish.

The Japanese and Germans did not stop fighting at the end of WWII because they desired Allied government, but rather because our militaries subdued their militaries.
 

That is what successful conquests accomplish.

The Japanese and Germans did not stop fighting at the end of WWII because they desired Allied government, but rather because our militaries subdued their militaries.
# posted by Blogger Bart DePalma : 11:08 AM


Dumbfuck, there were plenty of Vietnamese still there and capable of fighting after we left. If they hated the communists as much as they hated us they would have continued fighting. In fact, the fighting stopped.
 

Bart

One cannot debate a policy or hold our officials accountable when they hide the very thing that warrants debate.

The Pentagon Papers, among other things, "revealed that the U.S. had secretly enlarged the scale of the Vietnam War with the bombings of nearby Cambodia and Laos, coastal raids on North Vietnam, and Marine Corps attacks, none of which were reported in the mainstream media."

http://en.wikipedia.org/wiki/Pentagon_Papers
 

As to this treason business, Ellsworth and Snowden did not give this information to our enemies, they gave it to we the people via the press. If treason consists of informing the American people about matters that they should be giving their consent for officials to do but which the officials are hiding from them, then it is not condemnatory and is indeed laudable.
 

Mr. W:

"The Pentagon Papers, among other things, "revealed that the U.S. had secretly enlarged the scale of the Vietnam War with the bombings of nearby Cambodia and Laos, coastal raids on North Vietnam, and Marine Corps attacks, none of which were reported in the mainstream media."

And keeping military operations secret is in what possible way a crime or violation of the constitution which would justify Ellsberg's disclosure of our grand strategy to the enemy?

When the nation goes to war against an enemy, it is perfectly legal and proper to attack the enemy wherever they are located. That would certainly include the enemy's home country and any third countries like Laos and Cambodia which the enemy has invaded.

During WWII, we launched operations in dozens of countries against the Axis, many of which were not reported in order to maintain the illusion of neutrality for these countries.

We did the same thing in Cambodia and Laos.
 

This strikes me as a characteristic Baby Boomer post hoc justification for a marked shift to conservatism.

Along the lines of "yes we all smoked pot in the 60s, but no they have bred stronger pot, so that's why I'm all of a sudden in favor of drug laws."

The US is outright murdering American citizens without any kind of judicial process because they don't like what they have to say. Did Nixon or Johnson ever do that?
 

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

The opinions in the Pentagon Papers raised various possible routes for criminal charges, especially if done the right way, but it wasn't a Tokyo Rose situation. There was no "adhering" in either case here. Clearly, no "levying war."

There seems to be some sort of lines here or outing spies or other "subterfuges" would be totally proper. But, Mr. W then speaks in subject heading tones.

But, the rubber meets the road here on details.
 

Mr. W:

As to this treason business, Ellsworth and Snowden did not give this information to our enemies, they gave it to we the people via the press. If treason consists of informing the American people about matters that they should be giving their consent for officials to do but which the officials are hiding from them, then it is not condemnatory and is indeed laudable.

If the President is asking Congress and the American people for permission to wage a war, then the CiC needs to provide us with the information showing the war is necessary. However, once we have declared war, the CiC we elected decides how to prosecute that war and much of that prosecution will be by necessity need to remain secret from the public to remain secret from the enemy.

Publishing strategy, tactics and operations to the public also publishes them to the enemy and thus provides the enemy with aid and comfort. If the Rosenbergs published our nuclear weapon technology in the NY Times instead of giving it to NKVD operatives, they still provided the classified information to the enemy and still committed treason.
 

"The US is outright murdering American citizens without any kind of judicial process because they don't like what they have to say."

They are not.

Al-Alwaki is the leading example here (there being a handful, including one or two killed accidentally). He was not killed "because they don't like what they have to say" only.

Also, Congress authorized military force, and in the past like in the present, this doesn't give citizens who are in war zones etc. a free pass. See, e.g., the many many citizens killed in the Civil War.

Police alone have a right to use deadly force in limited cases. It is not "murder" to do so. This is akin to calling abortion "murder."

Al-Awalki's father went to court & he himself didn't TRY to submit himself to judicial process. Not that judicial process generally is necessary before usage of military force in a range of cases.

There are also a range of limits in place -- including by the Administration's own policy -- before force can be used. Killing someone in their home in NJ w/o judicial process would be a lot more liable to be murder than people who are leaders of Al Qaida out of the reach of judicial process.

If a citizen joined up with the Viet Cong, yes, Nixon or LBJ would not lose much sleep if military force brought them within their deadly targets. Nixon at least surely did target people for what they said in lesser ways.
 

1) Yemen is as much a war zone vis-a-vis the United States as England.

2) There's been no evidence available to the public that Al-Alwaki engaged in any activity other than first amendment protected speech.

3) Police can't fire a missile at someone because he might at some point in the future commit a violent crime. It requires imminence, the redefinition of which is one of the Obama administrations most Orwellian efforts.

4) A secret, entirely executive process, is no due process at all. The entire executive branch serves at the pleasure of the President. The rules are drawn up under the authority of the President. Such "process" is ultimately no different than the President shaking an eight ball.

5) In any event, those of us who are under the age of 40 find Snowden a hero. It's unfortunate that self described liberals are only liberal on issues that existed 50 years ago.
 

Joe:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

The opinions in the Pentagon Papers raised various possible routes for criminal charges, especially if done the right way, but it wasn't a Tokyo Rose situation. There was no "adhering" in either case here. Clearly, no "levying war."


A traitor adheres to the enemy by providing them aid and comfort. Proof of the provision of aid and comfort is by implication proof of adherence.

This is how prosecutors have proven nearly all treason cases. The defendants generally do not confess to adherence and the mere assertion that they provided aid and comfort for reasons other than adherence are generally ineffective.

I would recommend the Supreme Court decisions affirming the WWII treason convictions for your reading.
 

> I would recommend the Supreme Court decisions affirming the WWII treason convictions for your reading.

You mean the cases that were moot when the opinions were drafted because FDR had already killed the appellants?

Are advisory opinions precedential?
 

Bart

When our elected officials authorized the use of force against Iraq, if the President then secretly initiated military operations in Syria to, say, defeat the Baathist Party in power there on a theory that they were linked to Iraq's Baathist Party, I would find that an impeachable offense. At the very least it would be a matter to be debated (would authorization for force against Iraq have been approved if it were known that Syria would be targeted as well?). And if a patriot who knew about such illicit activity made it known to the US public via our press I would find an argument that the enemy could read the same news and therefore this patriot was a traitor to be laughable. He would be a hero. A democracy based on the consent of the governed cannot exist when such matters are kept from the public.

I think your idea of treason in general and aid and comfort in particular is dangerously broad. If, for example, we were secretly engaging in techniques which were contrary to our values (like torture), threatened our domestic liberties (like surveillance), or were simply foolish or wrongheaded, then under your theory as long as these were kept from the public then any dissident who made it known in order to argue against these operations and policies would be guilty of treason. That's a nightmare.
 

Regarding Vietnam, this began as a failure of French colonialism that a post WWII France could not handle. Ike sent in "advisors" to assist the French. Perhaps Ike's "Farewell Address" on the military-industrial complex overlooked his role in Vietnam or perhaps expressed fears of expansion. The involvement increased with JFK but it isn't clear whether he would have expanded as LBJ did.

Jumping to Iraq and the Middle East, that region was a failure of British/French colonialism following WW I. I t continues to be a hornets nest many years later.

Ellsberg was involved with the Vietnam War in the matter of the Pentagon Papers. To my knowledge Snowden's focus NSA documents was not on Iraq, Iran,or the rest of the Middle East.

I mention this as it seems that the direction of this thread gets into Iraq II, which like the Vietnam War was a mistake, wars of choice, for the wrong reasons. Ellsberg's situation is somewhat different from Snowden's.
 

Mr. W:

I have previously suggested an affirmative defense for true whistleblowers which I think addresses your concern. If a person reasonably believed that the classified information he or she published was evidence of a criminal or unconstitutional act, then this should be an affirmative defense to the Espionage Act or Treason. Mere policy disagreement or a journalist's belief that the information makes a good story are not valid defenses.
 

That's fine, Bart, but they have to be guaranteed a trial for that to work. Can you think of any reason Snowden would reasonably anticipate getting a prompt jury trial without all the evidence suppressed, should he return? Instead of spending years in solitary, or a military tribunal, or a rigged trial where all his evidence is excluded?

You need a properly functioning judicial system without the executive having ways to bypass it, for that proposal to work.
 

Has a detailed comparison been made between how information came to the Church Committee and Snowden's disclosures to determine whether Snowden had a meaningful alternative to the route he chose? The Church Committee seemed to address the issues without focusing on animosity with those who provided information. In contrast, while Congress is disturbed with NSA, the greater focus of both Congress and the Executive is on Snowden and the press to whom he made disclosures. While Congress and the Executive have challenged NSA to a certain extent, will they be able, as was the Church Commission, to address NSA abuses? The Church Commission did not have a 9/11. Early on after 9/11, Congress walked in lock-step with the Executive in extending NSA powers. With two long wars - Afghanistan and Iraq II - the War on Terror gave support to NSA. Iraq II is over (but not its damage) and Afghanistan is winding down. With the current gridlock and the mid-term elections in a few months, can we expect meaningful actions from both Congress and the Executive on NSA abuses? Some - perhaps much - of the gridlock results from those in Congress who walked in lock-step with Bush/Cheney especially on Iraq II.
 

Brett:

Snowden is not an enemy combatant, he can exercise his right to speedy trial by immediately entering a not guilty plea, and he possesses all the documents he needs for his defense. I would make the wrongdoing defense a defense against prosecution altogether and allow him an immediate bench hearing on the defense.

Snowden's problem is not my proposed defense nor our federal criminal justice system, but rather he is guilty as sin of treason, violation of the Espionage Act and conspiracy to commit both. In addition to information about our intelligence gathering (which the FISA court has repeatedly approved), Snowden has released reams of documents on perfectly legal intelligence gathering against foreign nationals.

This would be an easy case for the prosecution to prove because nearly all of it has already been made public and it would not be an issue to bring before a jury.
 

Anyone who takes Kerry seriously about Snowden's obligation to return for a "fair trial" should first read Ellsberg's description of his own prosecution. An excerpt and discussion can be found at

http://digbysblog.blogspot.com/2014/05/i-happen-to-have-daniel-ellsberg-right.html
 

I see I posted without seeing Bart DePalma's comment. DePalma clearly doesn't believe in trial by jury, and as Ellsberg explains, Snowden wouldn't get one on the key issue of is defense. Plus he would certainly be held in solitary confinement for the years that it would take to get his case through trial and to the Supreme Court on the untested constitutionality of applying the Espionage Act to leaks to journalists. (But as dePalma doesn't believe in the First Amendment either, I suppose that wouldn't bother him.)
 

Unknown:

I noted Snowden's right to a jury trial above. Snowden can trigger speedy trial by entering a not guilty plea and asking for a trial date in federal court.

As I have repeatedly explained, a personal policy disagreement with a classified activity is not a defense to either treason or the Espionage Act. The fact that Snowden's fellow traitor Ellsberg has a problem with that is irrelevant.

Snowden is not a journalist and, if he were, there is no journalist exemption to treason or the Espionage Act. The fact that the NY Times might have a problem with that is irrelevant.
 

"Snowden can trigger speedy trial by entering a not guilty plea and asking for a trial date in federal court."

Theoretically, yes. As a practical matter, he'd be a fool to have your confidence in this working.
 

Bart

You say "If a person reasonably believed that the classified information he or she published was evidence of a criminal or unconstitutional act, then this should be an affirmative defense to the Espionage Act or Treason."

From Wikipedia's entry on PRISM: "PRISM began in 2007 in the wake of the passage of the Protect America Act under the Bush Administration.[10][11] The program is operated under the supervision of the U.S. Foreign Intelligence Surveillance Court (FISA Court, or FISC) pursuant to the Foreign Intelligence Surveillance Act (FISA).[12] Its existence was leaked six years later by NSA contractor Edward Snowden, who warned that the extent of mass data collection was far greater than the public knew and included what he characterized as "dangerous" and "criminal" activities.[13]"

Considering that many major legal experts such as Orin Kerr, Randy Barnett, Laura Donohue, etc., have concluded the program has broken the law and/or is unconstitutional and that several major lawsuits are pending on the subject, I think one would have to conclude that Snowden's beliefs were certainly reasonable (for what it's worth, Ellsberg also said repeatedly that he found the actions described in the Pentagon Papers to constitute criminal acts).

I'd add my two cents that while your suggested affirmative defense is nice, that the government should have the burden of proving intent to give aid and comfort to the enemy, rather than inform the public about actions considered criminal, for any charge of treason to lie. To consider such an element met just because the enemy may have found aid and comfort in what someone does is ludicrous. Consider this hypothetical: what if it were shown that what Al Qaida wanted more than anything to result from their 9/11 attacks was for the United States to invade an Islamic country, with them hoping this would provide a recruitment/rallying cry for their cause. If this were so, then those advocating we respond in that fashion would under your theory be traitors, even if they genuinely thought they were urging the right response for our nation!
 

In regards to the reasonableness of Snowden's conclusions that the NSA's actions were illegal, consider that the FISA court itself has ruled that the NSA engaged in illegal surveillance activity.

http://apps.washingtonpost.com/g/page/national/first-direct-evidence-of-illegal-surveillance-found-by-the-fisa-court/393/

http://www.washingtonpost.com/world/national-security/nsa-broke-privacy-rules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f-49ddc7417125_story.html
 

BD: "Snowden can trigger speedy trial by entering a not guilty plea and asking for a trial date in federal court."

Brett said..." Theoretically, yes. As a practical matter, he'd be a fool to have your confidence in this working."


The prosecution has no say in the exercise of speedy trial. Generally prosecutions take longer because the defense is not exercising speedy trial in order to conduct discovery and prepare for trial.

In any case, all of this is academic. Snowden will never voluntarily stand trial because the evidence against him - including his own admissions - is overwhelming.
 

Mr. W:

As a defense attorney, I see a rather large hurdle in convincing a federal judge that my client reasonably believed that an intelligence program supervised and repeatedly approved by another panel of federal judges was illegal or unconstitutional.

Now, if the FISA court held that the XYZ intelligence gathering program was unconstitutional, the government continued it anyway and Snowden leaked evidence that the program was continued, then he should have a complete defense to criminal charges for the leak.

To avoid such leaks, genuine whistleblowers ought to have a secure place to communicate their concerns apart from the NY Times or Glenn Greenwald. Perhaps, an IG or the FISA court.

Mr. W: "I'd add my two cents that while your suggested affirmative defense is nice, that the government should have the burden of proving intent to give aid and comfort to the enemy, rather than inform the public about actions considered criminal, for any charge of treason to lie.

The burden of proof of every element of the underlying offense never shifts from the prosecution.

The way my affirmative defense would work with treason is that, even if the prosecution proves that the defendant adhered to the enemy by providing them with classified information of an intelligence gathering program, it would be a complete defense to the charge of treason that the program was illegal or unconstitutional.
 

"The prosecution has no say in the exercise of speedy trial."

Ha. Ha. Ha. Sometimes you're a riot. So, you're saying Manning spent over a thousand days in pre-trial detention because the defense wanted it?
 

Our CO gasbag's:

"To avoid such leaks, genuine whistleblowers ought to have a secure place to communicate their concerns apart from the NY Times or Glenn Greenwald. Perhaps, an IG or the FISA court."

demonstrates his naivete as a self professed criminal defense attorney (specializing in DUI of booze and now pot in his mountaintop community). What is a "genuine" whistleblower? How secure would an IG be? Does the FISA court provide a forum for whistleblowers, "genuine" or otherwise? Perhaps our CO gasbag could provide a few cites for the secure routes he suggests. If there are no such secure routes, then the next best thing historically is the Fourth Estate under the 1st A. Consider Ellsberg's responses to Kerry's "man up" statements on Snowden.

Ellsberg utilized the Fourth Estate. Over a relatively short period of time, the public provided support to Ellsberg. The Vietnam War was unpopular. Add to this Watergate and other Nixon Administration strains on good governance. The unpopularity of the Vietnam War was attributable in significant part to the draft, as well as what were we doing in Asia and how we were doing it. [The Ugly American comes to mind.]

Segue to post-9/11 and Congress' quick passage of laws enhancing NSA's powers. Some voices protested they imposed on civil rights. But patriotism trumped meaningful debate. The Neocons were in charge. Two wars followed supported by the public since there was an all voluntary military - to put it bluntly, NO DRAFT exposing their children who chose not to volunteer! Assuming the first war, Afghanistan, started as a so called "good war," the second, Iraq II, came about as a result of lies of the Bush/Cheney Administration and its Neocon leaders. Then came the Bush/Cheney 2007-8 Great Recession. The public became dismayed of the two wars.

Ellsberg over time became sort of a hero. The public recognized that Vietnam War was wrong for America, especially when their sons could be drafted to fight in faraway Asia. Consider how the Vietnam War ended. Compare this to Snowden's situation. [Note: I am not prepared to call him a hero for what he has done and how he did it. Time will tell whether he is or not. But he did get the attention of Congress and the Executive to respond to what NSA was doing that might be impinging on Americans' civil rights.] What secure alternatives were available for him to blow the whistle other than the Fourth Estate? Maybe Snowden deserves punishment of some sort. But more facts have to be developed. Can we rely upon Congress and the Executive to look at this in depth, keeping in mind the complicity of both Congress and the Executive post 9/11?
 

Some months ago, per a blog discussion (Volokh Conspiracy?), read about the proper line between the 1A and treason and WWII case law was cited. The Tokyo Rose "adhering" situation was determinative, such as someone who worked for a German radio station. Again, as seen in the Pentagon Papers opinions (and here), there are possible serious criminal charges to be brought. Whatever their legitimacy and pragmatic value.

But, unless he "adhered" to the enemy -- which I would need a lot more evidence to determine -- it wasn't treason. He did not "levy" war either. Again, even when that might be the case, it's likely the government would rest on some lesser punishment.

Treason charges for a variety of reasons were rarely brought.
 

As to Brad.

1] Like in other conflicts, the 'war zone,' including under the authorization by Congress in 2001, is a range of places. Simply put, no, some lawless Al-Qaida laden places in Yemen are not the same as England, both for the danger and the presence of alternative methods of obtaining people.

2] There is "evidence available to the public" of that nature (you can debate the specifics) and anyway authorized force, including pursuant to congressional authorization, does not have to be based on info first printed in the NYT. That isn't exactly how things have worked.

3] Obama has spelled out multiple criteria and mere future dangerousness is not enough. But, it's nice to at least narrow down a bit on what is happening.

4] The process is not totally secret. The basic criteria was released. There are limits based on the rule of law (dropping a bomb in NJ, e.g., would be problematic) which is readily noted. Members of Congress are involved.

Personally, i would press for more here, but just throwing up my hands and saying "no limits" seems a tad counterproductive. But, ultimately, yes, the executive, especially during times of military force, have a certain ultimate responsibility. A bomb dropped in a war, e.g., ultimately rests on executive discretion in many ways.

5] No, that's same sex marriage. There are a variety of views and even many -- including those under 40 -- who think the government crossed the line are wary about trusting low level people to release broad amounts of secret information wisely especially if they -- unlike many a civil rights hero -- don't submit themselves to criminal process but instead go to let's say Russia. Hypothetically.

I admit, however, to not have done a poll.


 

Brett: "Ha. Ha. Ha. Sometimes you're a riot. So, you're saying Manning spent over a thousand days in pre-trial detention because the defense wanted it?"

Almost certainly. There was extensive discovery, motions and plea negotiations in that case. Mannings attorneys had to know he had no chance at trial and were trying everything in their power to avoid trail and get him the best outcome possible, including playing the media and political games.

Article 10 of the UCMJ sets speedy trial at 120 days.
 

So, what you really mean is not that you can avoid a lengthy pre-trial detention by pleading, but that you can avoid it by pleading, and forgoing all rights to mount an effective defense. Because they'll keep you in solitary under abusive "suicide watch" the whole time they're fighting your discovery efforts.

Well, you're probably right, you could get to the trial pretty fast if you volunteer to throw it in their favor.
 

This comment has been removed by the author.
 

Brett:

Speedy trial was automatically started at Manning's arraignment.

Manning's attorneys then demanded extensive classified discovery which required the defense team to be cleared and for the discovery to be reviewed and generated. Remember that Manning disclosed tens of thousands of documents to the enemy.

Manning's attorneys then raised mental health defenses which required examinations of Manning and a court hearing and ruling.

Finally, Manning's attorneys claimed the prosecution ran past speedy. The judge slapped down that motion, spending two hours reading her order into the record.

If Manning's attorneys had not made these motions, Manning would have been tried in 120 days.
 

DePalma: "The fact that Snowden's fellow traitor Ellsberg has a problem with that is irrelevant."

At least you're consistent. John Kerry called Ellsberg a patriot. I'd be happy to agree that if Snowden is a traitor so is Ellsberg, and if Ellsberg is a patriot so is Snowdon.
 

Unknown:

After his reprehensible slander of his brothers in arms before the Congress during the Vietnam War, John Kerry is hardly an ideal witness to establish the good character of Daniel Ellsworth during that same period.

http://youtu.be/A98pWnnUgEg
 

Our CO gasbag Informs us:

"After his reprehensible slander of his brothers in arms before the Congress during the Vietnam War, ...."

and provides a link to Kerry's 1971 statement to a congressional committee that runs just short of 30 minutes. Truth is of course a defense to slander, as even a criminal defense lawyer should know. Is our CO gasbag challenging the truth in Kerry's statement? If so, he should provide the evidence. The history of America's involvement in Vietnam has been sad and tragic, taking too long to recognize its horrors for not only Vietnam but also for America. It set back the military on its ass for a long time. So our CO gasbag has provided a valuable link to listen to judge Daniel "Ellsworth" back in the same time frame. Perhaps our CO gasbag is of the view that Kerry should not have spoken the truth about what some of his fellow military did in Vietnam. Keep in mind that there was a draft in place.

Segue to Iraq II and the Bush/Cheney torture policy. Did its disclosure have the same impact as Kerry's 1971 statement or the My Lai massacres during Vietnam? I don't think so, what with Cheney and other Neocons' torturous defense of torture, as well as the fact that there was no draft.

I don't know how old our CO gasbag was in 1971, but there had been other news about the horrors of Vietnam to put in perspective to understand why Kerry said what he said. Perspective is important. And consider subsequent events leading to America's withdrawal from Vietnam. Americans realized the horrors of the Vietnam War. It has taken a long time to recover from such horrors, assuming we have.
 

Shag: "Is our CO gasbag challenging the truth in Kerry's statement? If so, he should provide the evidence."

The only reason that Kerry was not sued for slander is because he never actually identified any individual who committed the war crimes he alleged.

Truth is a defense to slander and Kerry never offered a scintilla of evidence to support his accusations.
 

Iirc Kerry was summarizing the testimony of over a hundred Vietnam vets about their personal experiences. I guess they were all slandering themselves according to Bart.
 

Our CO gasbag demonstrates once again a lack of a scintilla of credibility with the history of the Vietnam War. To him it is more important that a military member support his "brothers" regardless of their violations.
 

Mr. W:

Kerry was regurgitating the propaganda issued by the VVAW during an earlier media event called the "Winter Soldier Investigation" which was similarly evidence free. The Army CID followed up on the stories and found nearly all of them had no verifiable basis.

http://www.wintersoldier.com/staticpages/index.php?page=Swett_CID

I am being generous calling Kerry's statements slander.
 

Shag:

WHAT violations?

Where exactly do Vietnam vets go to recover their reputations because of malicious slanders like that offered by Kerry?

I thank God I was not serving during the Vietnam War because I would have probably ended up in prison if some scumbag like Kerry had made slanders like this to my face.
 

Bart says Snowden is a traitor. Who is the enemy he has aided?

In Vietnam, there clearly was one: the North Vietnamese state, acting in the South through a proxy, the Viet Cong.

The GWOT is not the kind of war for which treason was defined. As a global power, the USA will always have non-state adversaries who object to its actions violently. So "war" is the normal state, and the President as CiC can do what he or she likes to prosecute it.

Bart could appeal to the Tudors, who prosecuted and executed traitors in peacetime: Henry VIII for challenging his supremacy over the Church of England, Elizabeth (more reasonably) for conspiring to overthrow her by violence. Does he really want to make Thomas Cromwell and Francis Walsingham exemplars of law for the United States? Their practice is already followed.
 

Our CO gasbag attempts to pull a "Swiftie" with his new link.

Query: What is the obligation of a person serving in the military to report on possible violations by fellow military personnel?
 

"the Army CID followed up on the stories and found nearly all of them had no verifiable basis. "

The government agency investigated allegations of its own wrongdoing and found nearly none of them, and that's enough for you? That's an incredibly charitable turn from a libertarian.

For those a bit less trusting of government agencies, I might suggest the book reviewed here, which found serious issues in the military's actions and investigations thereof.

http://www.washingtonpost.com/opinions/kill-anything-that-moves-the-real-american-war-in-vietnam-by-nick-turse/2013/01/25/f6f8db0c-5e95-11e2-90a0-73c8343c6d61_story.html

 

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James Wimberley said..."Bart says Snowden is a traitor. Who is the enemy he has aided?"

We are at war with the Taliban, al Qaeda and all of their allies. They were targets of the intelligence gathering Snowden stole and published, and clearly qualify as enemies under the treason statute.

Less clear are countries like North Korea, Iran and Syria, who most people would consider to be enemies, but with whom we are not at war.
 

Shag: "Our CO gasbag attempts to pull a "Swiftie" with his new link."

You seem to forget that the Swiftboat vets were Kerry's fellow sailors who knew him personally.

Follow the links I provided go to the actual CID investigation documents.

"What is the obligation of a person serving in the military to report on possible violations by fellow military personnel?"

You immediately report war crimes to the chain of command or IG. None of these VVAW "witnesses" ever did this, which is yet another reason to question their propaganda.
 

BD: "the Army CID followed up on the stories and found nearly all of them had no verifiable basis. "

The government agency investigated allegations of its own wrongdoing and found nearly none of them, and that's enough for you?


When the alleged "witnesses" offer no corroborating evidence and have every motive to lie in order to accomplish their announced goal of undermining the war effort; yes, that is good enough for me.

"That's an incredibly charitable turn from a libertarian."

Just because classical liberals such as myself want to limit the power of government over our lives means that we automatically disbelieve military war crime investigations.

Kill Anything That Moves? Really?

The book has no bibliography because it is based on enemy documents and selective interviews.

According to this book, we soldiers were so psychologically traumatized by basic training that we blindly follow the orders of our fascist commanders to indiscriminately kill every human being we ran across in the field.

Oh, BTW, according to this author, the media and historians before him we all complicit with our fascist government in covering up this massive warcrime.

If this were indeed the policy, I assure you that the U.S. Army had the firepower to depopulate South Vietnam in a matter of months.
 

Our CO gasbag's:

"If this were indeed the policy, I assure you that the U.S. Army had the firepower to depopulate South Vietnam in a matter of months"

is an example of his mentality on war. To even think of such depopulation shows a lack of humanity.

Our CO gasbag was not in the military during Vietnam. But he declines to state how old he was in 1971. The events that led up to Vietnam started during Ike's Administration. To understand the context of Vietnam, one has to be aware of Ike's role, the '60s and the '70s. Following the news through that period on a daily basis painted a picture of horrors with the Vietnam War and its negative impact here in American. Recall Kent State. Recall various college campuses closed down in protest. Recall the lies from commanders in Vietnam. And especially recall how it ended and its impact on the military for years to come. (Also recall denials of problems with agent orange on those serving in Vietnam and how long it took to recognized that agent orange indeed impact the health of those serving in Vietnam.).
 

"The book has no bibliography because it is based on enemy documents and selective interviews."

A reviewer:

"As a work of popular history, Kill Anything That Moves, lacks a bibliography, though Turse does provide copious notes. Turse is skeptical of official U.S. government sources, because he views them as propaganda. To offset this absence of material, he draws from sources he deems more credible: Vietnamese government records, veterans’ memories from the interviews he conducted, and published participant narratives (of average soldiers, not the commanders). It appears that Turse accepts veterans’ memories uncritically; their perceptions of what happened become crystallized facts for Turse. He also utilizes the records of a Pentagon task force set up to investigate suspected atrocities, the Vietnam War Crimes Working Group, whose collected papers in the National Archives contain hundreds of documents pertaining to alleged incidents. In terms of secondary sources, Turse leans heavily on popular histories rather than academic works and relies a great deal on the efforts of other investigative journalists. On the whole, the notes suggest a deeply researched work, though more secondary works by academic historians could have helped give the text added weight beyond the realm of popular history."

http://www.h-net.org/reviews/showrev.php?id=38666

"and have every motive to lie in order to accomplish their announced goal of undermining the war effort"

Yes, and of course the government agency accused of wrongdoing would have no motive to lie or cover up in their investigation of their own alleged wrongdoing...That I have to explain this to a libertarian, even the 'classical liberal' kind, is curious.
 

I love how the Democrats and Republicans have completely changed positions on CiC power now that it is Obama (rather than Bush) exercising this power to trade war criminals for an American deserter held by the Taliban.

Now I am on conservative blogs explaining to Republicans (instead of here explaining to Democrats) that the CiC by definition has the power to detain and dispose of POWs and that Congress's legislation attempting to restrict that power is completely unconstitutional.

Just because a particular disposition might be bad policy does not make it unconstitutional or illegal.
 

Our CO gasbag attempts "needling" efforts to divert the thread. Reminds me of Boston's "Six Little Tailors" radio jingle of my youth that included this line:

"They could sew a seam on an old moonbeam ...."

There's a surfeit of moonbeams in CO with recreational ganja apparently.

But thanks for reviving this memory, my high for the day.
 

I have had two editions of the "Oxford Companion to the Supreme Court of the United States" and find it great resource.

Is this "handbook" related to that? I can't find that exact title on Amazon.
 

Bart, responding to me: "the Taliban, al Qaeda and all of their allies ... were targets of the intelligence gathering Snowden stole and published." Snowden did not publish his stolen material en masse. He supplied it to to a few respected mainstream newspapers, who have published selections from it using their own judgement.

Which of the materials published by these newspapers gave materially helpful information to al-Q and the Taliban? Learning that the NSA screens my and your mail too doesn't count. Anybody but a halfwit in those organisations must assume that his email and phone calls are tapped.
 

On the subject of Vietnam, Stephen Griffin's 6/3/14 post "What Kagan Left Out" provides some details of interest.
 

Bart, responding to me: "the Taliban, al Qaeda and all of their allies ... were targets of the intelligence gathering Snowden stole and published." Snowden did not publish his stolen material en masse. He supplied it to to a few respected mainstream newspapersCheap LOL Elo Boost
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