“Man Up!” Says Kerry to Snowden, As If a Fair Trial Awaits

“This is a man who has betrayed his country”, Secretary of State John Kerry said to NBC’s Brian Williams. Like Daniel Ellsberg, a patriot who stayed in the U.S. to “face the music”, Snowden should “stand in our system of justice and make his case”, was Kerry’s pronouncement.

But Kerry is misinformed in assuming that the NSA contractor, trapped in Russia on a temporary grant of asylum, would have the opportunity to make his case were he to return to the U.S. Who better to ask than Daniel Ellsberg himself?

Writing in the Britain’s newspaper The Guardian, Ellsberg said Snowden “would have no chance whatsoever to come home and make his case — in public or in court”. Ellsberg in 1971 turned over to The New York Times thousands of pages of classified documents that came to be known as the Pentagon Papers which said the Vietnam War could not be won, contrary to the lies of the Johnson administration. Like Snowden, Ellsberg was charged under 1917’s Espionage Act for the “crime” not of spying but for revealing truth to the American public. He was eventually acquitted.

But these are different times and this is a different government. President Obama harbors vengeance against leaks and the press that has led him to bring criminal charges in eight cases under the Espionage Act, whereas all the presidents in the last 100 years combined have resorted to the Act only three times.

Each of the two counts against Snowden, plus a third charge of theft of government property, carries a maximum prison sentence of ten years, but if Snowden were to present himself for trial, the government would assuredly pile on as many fabricated and redundant charges as needed to guarantee a life sentence. (For example, charges against Pvt. Bradley Manning included "Classified cable — 2 years", "Classified memos — 10 years", "Military records — 10 years", Military records [again] — 10 years", "Army record — 10 years".)

Ellsberg was free on bail to inveigh against the Vietnam war for the entire 23 months he was under indictment before his acquittal, an unimaginable outcome for Snowden. Moreover, he would certainly be imprisoned without bail and isolated in solitary confinement while awaiting trial, as was Manning, where he would remain for the entirely of his sentence, Ellsberg concluded after consulting with Snowden’s lawyer.

And in that trial, every attempt by Snowden’s lawyers to present the defendant’s reasons for exposing classified documents would be blocked by government lawyer objections on the grounds that there is no provision under the Espionage Act for defendants to make the case that their actions were in the public interest. Manning was not allowed to express his intent, nor to assert that there had been no damage to the United States, nor to cite the value of exposing military wrongdoings , nor argue that documents had been overzealously classified. He (now she) was thus stripped of any defense.

We would see the same in Snowden’s trial. The government would invoke the state secrets privilege to suppress any evidence presented by Snowden’s attorneys as endangering “national security”, no matter that the classified documents are already in the public domain. The argument that the Espionage Act is being wrongly used not against spying but what are in fact — whether legal or illegal — First Amendment leaks of information would be muzzled at every turn.

Instead of confronting the question of whether the Espionage Act can be applied to leaks to the American public, the Supreme Court turns its back.

It is all too willing to rule that the First Amendment says money equates to free speech and the wealthy should be allowed to give far more of it directly to candidates; it is all too willing to allow its favorite religion to insert itself into government proceedings in contravention of the First Amendment’s establishment clause; it will likely be willing in a ruling expected this month to extend First Amendment freedom of religion to favored corporations, which as "persons" now deserve exemptions from laws that offend their religious sensibilities — but the Court has ducked matters of press freedom under the First Amendment for the last 42 years.

In fact, it just ducked again. The Court turned away a repeal to hear the case of New York Times reporter James Risen, who has refused to confirm that Jeffrey Sterling, formerly CIA and indicted under the Espionage Act, was his source for a story about sabotage of Iran’s nuclear program. The government has vindictively been pursuing Risen for six years. The Times calls it an “intolerable infringement of press freedom". Risen says he will not yield and faces prison. The government’s brief said “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources”. But our secret government judges as criminal wrongdoing the leaking of documents that it now classifies at a rate verging on 100 million a year (92 million in 2011), far beyond by a power of ten what truly needs to be kept secret. In a country that rampantly classifies everything, how are we to know of what is going on in our secret government without a free press and its investigative work? Or from whistleblowers like Snowden.

In January, finally reversing course to acknowledge that the NSA had gone well beyond the Patriot Act by deciding that the “business records” of Section 215 meant the phone calls, e-mails, Google searches, Twitter tweets and Facebook postings of everyone in the country, President Obama announced his intention for NSA to cease collection of all U.S. phone call metadata. The data is to be left with the telephone companies, and NSA will be required to obtain warrants from the FISA court to access that data for specified individuals only. “Given the unique power of the state, it is not enough for leaders to say, Trust us, we won’t abuse the data we collect,” he said.

In May, the House passed a law to that effect, although caving in to White House pressure behind closed doors by loosening the single individual restriction. It is shortly to be taken up by the Senate.

Snowden brought about this turnabout. There was no knowledge of NSA’s clandestine operations before he exposed them. The Senate and House intelligence committees, charged with oversight of NSA, were sleepwalking through their job. “He has done his country a great service” said the editorial page of the New York Times. Conservatives and libertarians, who regularly cite constitutional freedoms and vilify an intrusive government, agree.

Which makes for the towering hypocrisy of thanking Snowden for finding the truth of a secret government operation that spies on every one of us while the Obama administration plans a reward of the rest of his life in prison.

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