Saturday, May 23, 2015

Ron Goldfarb: "It's Time To Bring Snowdon Home" ... by gimleteye

Ron Goldfarb, a resident of Key Biscayne and Washington, DC, writes for Politico: "It's Time To Bring Edward Snowdon Home".

After the Snowdon affair, EOM voted him to be the Time Magazine "Man of the Year". Now that time has passed and passions cooled a little, Ron Goldfarb offers a sober, rational path for Snowden's return.

I agree with Ron, especially: "It should not be a crime to report a crime". Altogether, whistleblower protections need to be strengthened in the U.S., including harsher criminal sentences when offenders are exposed within the ranks of government.

If Edward Snowden is a traitor, what do we call the architects of the war in Iraq who exposed the United States to $3 trillion in taxpayer costs and American blood? The war on terror is proving exceptionally difficult to dial back now that a constituency for intelligence gathering has acquired wealth and the prerogatives of power.

With a public, televised trial and a fair reckoning by the courts -- still presumably insulated from politics -- Edward Snowdon could provide another significant boon to the American people who have reason to question what happened to American exceptionalism.

It’s Time to Bring Edward Snowden Home
The government is entitled to an accounting. He is entitled to make his case for clemency.

“There is a danger to letting the government in,” Rand Paul warned today from the Senate floor during his filibuster-like attempt to prevent the looming Patriot Act renewal. Just prior to that comment, Paul name-checked the man without whom his speech would likely never have taken place: Edward Snowden.

During his speech against the Patriot Act, Paul leaned heavily on the information that Snowden brought to light. That’s because Snowden has transformed the debate in this country—and in the world—over surveillance. Given that fact, it’s more than a little strange that the most famous whistleblower in recent U.S. history shouldn’t be here to speak up as we consider the results of his handiwork. Which is why it is time to bring Edward Snowden home to America and let him make the case for his freedom in front of a jury of his peers.

As the Patriot Act nears its expiration date at the end of this month, Snowden’s fingerprints are all over the legislation under debate, including whether to end the bulk collection of telephone meta-data altogether after a federal appeals court ruled it illegal. Congress is battling over whether to extend the Act, allow it to disappear or to rein in NSA's bulk collection programs by passing legislation (interestingly called the Freedom Act) that reforms current surveillance practices. It’s unlikely those reforms would be under debate without Snowden’s disclosures.

When he comes back, Snowden’s trial and sentence should be televised for the public to witness. The government is entitled to an accounting. He is entitled to make his case for clemency. Whatever crimes he committed, he has enlightened the world for the better, and he deserves a trial that pits the good his revelations have done against the alleged damage he has done to national security.

Negotiations are reportedly ongoing for Snowden’s return. He has said that he is prepared to come home if he can have a fair and open trial. That is his constitutional right and it would be in the public interest. One commentator called Snowden “a conscientious objector to the war on privacy”; others view him as the latest in a line of civil disobedience that runs from Exodus to Rev. Martin Luther King, Jr. Of course, Snowden also has many detractors who consider him a thief, and worse—a traitor.

The courts can settle this matter, but only if they are allowed to consider the legality of the secrets Snowden disclosed. USC-Berkeley Journalism Dean Edward Wasserman and Harvard Law School Professor Yochai Benkler believe there should be a public interest defense to protect whistleblowers in cases like Snowden’s. It is hypocritical that sources are punished while their press contacts win prizes for using their information. And it should not be a crime to expose a crime.


The U.S. Second Circuit Court of Appeals in New York City recently ruled unanimously that the government’s telephonic metadata gathering surveillance practices that Edward Snowden revealed were unlawful. That decision by the most prestigious appellate court in the federal system is consistent with an earlier decision in the federal district court in Washington, DC, Klayman v. Obama. Another case is pending in the 9th Circuit.

In the 2nd Circuit case the court ruled that collecting private telephonic metadata was an "unprecedented contraction of privacy expectations of all Americans," which is exactly the sort of language Snowden has used when defending his actions. If it turns out that Snowden was right about the unlawfulness of America’s security state, shouldn’t that be taken into account when a judge and jury decide his punishment?

There is a recent precedent in the conviction and sentencing of retired General David Petraeus. Clearly there are major differences between Petraeus’s and Snowden’s crimes. The scope of material that Snowden appropriated dwarfs the classified information that the general mishandled. But Snowden—and the General—violated their security clearances. Snowden did so in order to fundamentally change America’s security state. Petraeus was just trying to please his biographer/mistress.

The scale of their law-breaking wasn’t exactly equal. But if there were good reasons for judging the honored general with compassionate understanding, some similar measure of justice is owed the reviled Snowden, whose daring acts were motivated not by vanity or promiscuity, human frailties, but by public spirited concerns about the constitutionality of government programs—concerns that turned out to be correct.

Whatever one thinks about the relative virtues and sins of Petraeus and Snowden, the once-celebrated military hero acted out of "vanity and lust," the New York Times editorialized, and he lied to the FBI about his wrongdoing (a federal crime when I was a prosecutor). Compare that with Snowden, who disclosed his information to trusted press contacts, did not hide his acts and was not motivated by personal interests. Hunting him down like he was Tokyo Rose, while the general is let off with a fine and probation suggests we are not all equal before the law.

People disagree about how best to strike the proper balance between national security and constitutional rights. That’s exactly why a televised trial would do this country good and allow the public to participate in this important debate. Georgetown law professor David Cole has written, "Snowden’s disclosures portray an insatiable agency that has sought to collect as much information as it possibly can, most of it relying on secret interpretations of law." Those laws, and the procedures of the security state, deserve a trial of their own.


After 9/11, the country was understandably in shock, angry, and it called upon its intelligence establishment to give our national defense the highest priority. National security officials decided to collect what it dubbed the “haystack” of information in its search for all the dangerous needles. That metaphor was apt: our pursuit of treacherous evil-doers made us pursue every lead in order to assure the concerned citizenry that such a tragedy on our soil would not be repeated.

The question being asked a decade later, in the aftermath of Edward Snowden's disclosures, is whether gathering haystack of data is an efficient way to identify threats. If we collect everything, Snowden told a Princeton audience in May 2015, we understand nothing. And we trample the privacy and constitutional rights of innocent citizens in the process.

Hay stackers still theorize that we can’t know what we don’t know, and therefore traditional court orders authorizing searches of individual records are unworkable until after the government has already searched its massive databases and identified specific "needles.” Anti-haystackers argue that we won’t know what we do know if we gather so much data that needles get overlooked, as it has been claimed happened with the 9/11 and Boston Marathon disasters. Ironically, too much data actually compromised the effectiveness of our investigations.

As US Supreme Court Justice Potter Stewart said forty years ago, “When everything is classified, then nothing is classified. And the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”

Our tripartite government is based on executive actions being subject to judicial review and congressional oversight. Sadly, in national security cases, the federal courts have abdicated their independent roles and invariably defer to executive claims of state secrets. Congressional oversight also has been faulty in recent times. The public relies on its legislative representatives under our government’s separation of powers to review and control executive excesses. But there is an inherent dilemma: Congress must rely on the very agencies it oversees for the information needed to perform its overseeing.

The 9/11 Commission concluded that prevailing congressional oversight of national security was ineffective. Another prestigious report concluded that Congress’ watchdog role was overly partisan and dysfunctional. We have evolved, one expert historian concluded, from eras of trust, to uneasy partnership, to distrust, to partisanship, to acquiescence. Senator Bob Graham, who chaired the Senate Intelligence Committee and chaired a post-9/11 joint congressional inquiry into intelligence activities, concluded that there is too much politics, excessive secrecy, over-classification, lack of agency cooperation, need for more congressional expertise, and that heightened attention to constitutional rights of citizens is required.

When the government hides its faults, it remains for the press to expose them. But the sources the press relies on have been treated harshly when they “blow their whistles” on government misconduct. Former newspaper editor and State Department spokesman Hodding Carter reminds us that the press’ chief client is the public, rather than the “temporary custodians of the state.” But much of what the press knows about national security is from government sources. The national security establishment tells only what it wants told, and whistleblowers who speak to the press do so at great risk, as the Snowden case and others since 9/11 make clear.

A fair an open trial of Snowden would certainly heighten the public’s attention on this dilemma. Interestingly, according to an ACLU survey (the organization represents Snowden, it should be noted), Snowden’s principles and reforms he advocates have greater support than does Snowden, the individual. People don’t like snitches, to use the loaded word for what civil libertarians call whistleblowers. A trial that sorted fact from fiction would force Americans to reconcile their principles with their views on Snowden.

People believe, I have noticed in private conversations, that Snowden dumped the information he stole onto public screens, like Julian Assange did. No so, he provided the information he took to trusted journalists to curate and only publish information they agreed demonstrated unconstitutional procedures. One of his press voices, the Washington Post’s Barton Gellman, says Snowden has been his most reliable source, that he gave him no instructions about what to release, only to act out of civic duty and ensure no danger is done, and that only constitutional problems should be exposed.

If the government and Snowden come to an agreed settlement, it ought to include a fair compromise. My recommendation as a civil liberties oriented former prosecutor is that Snowden agree to plead guilty to misappropriation of government records as General Petraeus did, and that his sentence be a tempered one, as was the case for Petraeus. Arguably Snowden’s motives were more patriotic than were the General’s and he ought to be able to demonstrate that at his sentencing hearing, which I once again recommend be televised for public educative purposes.

Heroes are imperfectly great, the Greek historian Herodotus wrote, and villains are never perfectly villainous. So it has been with Petraeus and Snowden. Snowden is guilty of misuse and unauthorized removal of classified government records, as was General Petraeus. Like the General, he also deserves a balanced sentence.

Ronald Goldfarb is a veteran Washington, DC attorney, author, and literary agent. He served in the Justice Department in the Robert F. Kennedy administration. His book, After Snowden: Privacy, Secrecy, and Security in the Information Age, will be published on May 19 by St. Martin’s Press, Thomas Dunne Books imprint.

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Anonymous said...

There is a difference between being a traitor and a whistle blower. Don't let that commie off the hock just because we can't charge Cheney. They all have put the American public at serious risk.

Anonymous said...

Snowden is a traitor pure and simple. He put American lives at risk. Why should we pay more tax dollars to allow him to opportunity to go through the process? Let him live his life with the Russians who absolutely hate us. I'm sure he's having fun watching his back and we are saving tax dollars.

Anonymous said...

I consider Snowdon the finest patriot of my lifetime, a man who saw the greatest threats to our freedom since WWII and risked all to expose tyranny cynically masked as freedom.

Anonymous said...

An out of control vast spy network collected citizens personal information that was contrary to legislative authorization. Why is the person who exposed this being called a traitor by many? Whistleblower seems more accurate.

Anonymous said...

No - whistle blowers expose the problem in order to protect lives. Traitors give away information that puts lives at risk. He certainly could have made his point without giving our sworn enemies a treasure trove of data.

Only an anarchist could love Snowden.

Let him rot with his commie friends. He is where he belongs.

How many more lives will we have to honor on future Memorial Days thanks to this A-Hole?

Anonymous said...

Well, let him come back home. There are many different kinds of welcome wagons anxiously waiting his return.