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marmar

(76,985 posts)
Fri May 30, 2014, 09:02 AM May 2014

Juan Cole: Mr. Kerry: Why Snowden can’t “Make his Case” in “Our System of Justice”


By Juan Cole

Secretary of State John Kerry said that Edward Snowden should “return home and come back here and stand in our system of justice and make his case.” Kerry seems to have a high opinion of the Department of Justice and the US courts when it comes to national security issues. I can’t imagine for the life of me why. Kerry is either amazingly ignorant or being disingenuous when he suggests that Snowden would be allowed to “make his case” if he returned to the US. No one outside the penal justice system would ever see him again, the moment he set foot here, assuming he was not given a prior deal. He could maybe try to explain himself to the prison guards, assuming they didn’t stick him in solitary. Here are some reasons Mr. Snowden would be unwise to trust himself to that system, given the charges against him:

1. The United Nations Special Rapporteur found that the US was guilty of cruel and inhuman treatment of Chelsea (Bradley) Manning, who was responsible for the Wikileaks and revelations of US killing of unarmed journalists in Iraq. Manning was kept in solitary confinement and isolated 23 hours a day for months on end, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture, on the trumped up pretext that he was suicidal (his psychiatrist disagreed).

2. The Espionage Act under which Snowden would likely be tried is a fascist law from the time when President Woodrow Wilson (like Obama a scholar of the constitution) was trying to take the US into the war, and was used to repeal the First Amendment right of Americans to protest this action. It was used to arbitrarily imprison thousands and is full of unconstitutional provisions. In recent decades the act was used against whistleblowers only three times, but Barack Obama loves it to death. It is an embarrassment that it is still on the books and it reflects extremely badly on Obama and on Eric Holder that they have revived it as a tool against whistleblowing (which is most often a public service).

3. John Kiriakou, who revealed CIA torture under Bush-Cheney, was prevented by the Espionage Act from addressing the jury to explain the intentions behind his actions and therefore forced into a plea bargain. None of the CIA officers who perpetrated the torture or their superiors, who ordered it, have been punished, but Kiriakou is in prison and his family is in danger of losing the house because of the lack of income. The US public deserved to know about the torture rather than having Obama bury it the way he has buried so many other things wrong with the system. .............(more)

The complete piece is at: http://www.juancole.com/2014/05/snowden-system-justice.html



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Juan Cole: Mr. Kerry: Why Snowden can’t “Make his Case” in “Our System of Justice” (Original Post) marmar May 2014 OP
KnR. nt tblue37 May 2014 #1
Cole makes ProSense May 2014 #2
I knew you were going to say that. QuestForSense May 2014 #5
I suspect the political leadership Billy Budd May 2014 #7
KnR - how power corrupts whatever personal ethics the officeholder had... erronis May 2014 #11
The Administration may decide that it's not feasible to take him to trial OnyxCollie May 2014 #8
apparently Snowden is okay with all that fire and brimstone.. grasswire May 2014 #26
"The Espionage Act under which Snowden would likely be tried is a fascist law" bobduca May 2014 #3
yup, fascist is the correct word. nt m-lekktor May 2014 #4
Number 3 is not only completely incorrect, but I wonder that a writer who writes something so msanthrope May 2014 #6
kickeroo frylock May 2014 #9
Kick PumpkinAle May 2014 #10
Kiriakou Oilwellian May 2014 #12
Some were trashing Whistleblowers here...saying there were none before Snowden... KoKo May 2014 #23
NO JUSTICE POSSIBLE! Enthusiast May 2014 #13
Yep, a criminal proceeding is not a civil proceeding gratuitous May 2014 #14
Every motion is a legal issue ruled on and can be appealed. treestar May 2014 #19
Try again gratuitous May 2014 #25
The McMillan case was prosecuted under NY law, hence cannot be on-point struggle4progress May 2014 #20
Kick nt Hissyspit May 2014 #15
Yeah, Listen to all these idiots, Snowden, and don't be whining about wanting to Cha May 2014 #16
Cole is getting sloppy. The UN Special Rapporteur never issued any sort of official struggle4progress May 2014 #17
they really have to stop with this crap treestar May 2014 #18
Yeah there are way worse fascist laws in other countries, you America haters!!! bobduca May 2014 #22
Nietzsche grasswire May 2014 #27
K&R woo me with science May 2014 #21
Thank you Juan Cole! nt Mojorabbit May 2014 #24

ProSense

(116,464 posts)
2. Cole makes
Fri May 30, 2014, 09:18 AM
May 2014
Why Snowden can’t “Make his Case” in “Our System of Justice”

...bogus assertions to argue that point.

First, he's conflating the prosecution of Manning, who was in the military, with Snowden's situation. Even if Manning had a civilian trial, what is Cole's argument: everyone is tortured? Snowden shouldn't be held accountable because he might be tortured?

Does he really think that with all the focus on Snowden, that if he returned to the U.S. he'd be abused?

Next Cole focuses on Thomas Drake.

4. National security official such as Snowden are not covered by protections for whistleblowers in the Federal government, as Thomas Drake discovered. Drake helped bring to public attention the National Security Agency abuses that Snowden eventually made more transparent. But he was forced to plea bargain to a charge of misusing government computers. He lost his career and his retirement, for trying to let us know that when faced with a choice between a surveillance system that was indiscriminate and one that was targeted, the US government went indiscriminate. Indiscriminate is unconstitutional.

Yet Drake didn't flee the country.

There have been several prominent whistleblowers over the last several years who did not flee the country.

William Binney, Thomas Drake, and Thomas Tamm are whistleblowers who stayed and faced the consequences of their actions. They were not persecuted, they faced prosecution. They are not in jail. In fact, Tamm was the one who exposed Bush's illegal eavesdropping on Americans.

Tamm:

“He’s in for a pretty overwhelming investigation,” Tamm, now a criminal defense attorney in Rockville, Md., told POLITICO in an interview. “I think the government will use a lot of their resources to try to find him.”

But if Snowden is returned to the United States, Tamm said, “I think with the right representation, and with the right way of presenting what he did, I think he’ll be able to put his life back together.” Tamm says he’d even be willing to be part of the defense team.

http://dyn.politico.com/printstory.cfm?uuid=A9C45FF7-E7EB-44AD-9C5A-D2C7F0B7F276

During the NBC interview, Snowden dug himself into a deeper hole when he admitted, in his own words, that he took damaging information and distributed it and the only thing he has as a defense is that the recipients promised not to reveal the information.

Snowden's problem is that he knows damn well he screwed up with his actions overseas.

He's in deep shit, not for the information on domestic activities, but for the information that he admits is out there and still, he claims, hasn't been revealed. On that score, he's not about transparency, he's trying to save his ass. The Government is building it's case on the damage that information has done.

Cole and others are taking issue with Kerry stating that Snowden should be held accountable, and they're doing it by lashing out at the U.S. justice system. Kerry is a Government official, which system of justice is he suppose to advocate?

Did people expect Snowden's claims to go unchallenged by anyone with the stature to do so? Kerry's statements were similar to what many other Democrats have said.

Expecting any administration official to coddle Snowden is letting a bias get the best of logic. Being surprised that Kerry would point to the justice system is ridiculous.

Cole then goes on to point out the number of Americans in prison. What?

Is he really claiming that because millions of American are in prision, Snowden shouldn't have to be held accountable?

Does he think that it's OK for anyone suspected of a crime to flee justice as Snowden did?

Snowden and his lawyers know he broke the law. Snowden knows the extent of the information he took, as he admitted tonight. He screwed up. He's a fugitive.

It's interesting to see Kerry being thrown under a bus for calling out a self-confessed spy who stole government documents (some admittedly damaging) and fled the country. What did people expect Kerry to say?

Demanding or suggesting he return to the U.S. to be held accountable is not unusual. Kerry has earned the right to make that call.

 

Billy Budd

(310 posts)
7. I suspect the political leadership
Fri May 30, 2014, 11:16 AM
May 2014

of our United States to be guilty of crimes. They do not have to flee a system of Justice though because they have immunity for any and all crimes...total absolute no question immunity...Our Government is just upset that they have been exposed as criminals common criminals...they are upset and want a pound of Snowden flesh...perhaps a bit more... ....

 

OnyxCollie

(9,958 posts)
8. The Administration may decide that it's not feasible to take him to trial
Fri May 30, 2014, 11:37 AM
May 2014

and just assassinate him with a Predator drone instead.

Attorney General Eric Holder Speaks at Northwestern University School of Law
Chicago ~ Monday, March 5, 2012
http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html


Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

~snip~

Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

~snip~

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

~snip~

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

grasswire

(50,130 posts)
26. apparently Snowden is okay with all that fire and brimstone..
Sat May 31, 2014, 11:29 PM
May 2014

....you rain down on him. He expected to be killed or imprisoned, and decided that his (our) country was worth the risk.

There is nothing the NSA can do to undo what he has done. He achieved his goal of starting a national conversation on surveillance. He is at peace.

So there.

bobduca

(1,763 posts)
3. "The Espionage Act under which Snowden would likely be tried is a fascist law"
Fri May 30, 2014, 09:21 AM
May 2014

Kick for Juan Cole, using the F-word appropriately.

 

msanthrope

(37,549 posts)
6. Number 3 is not only completely incorrect, but I wonder that a writer who writes something so
Fri May 30, 2014, 10:33 AM
May 2014

ignorant is worth reading.

Mr. Kiriakou was not prevented from testifying. That was his absolute right under the law.

Oilwellian

(12,647 posts)
12. Kiriakou
Fri May 30, 2014, 01:55 PM
May 2014

Kiriakou hasn't been silent from jail, and he's even been punished for speaking to the press. However, it appears that this won't stop him from exercising his free speech rights. He recently penned a powerful op-ed for the LA Times asking why he's in jail, while former CIA boss and Defense Secretary Leon Panetta isn't even being investigated.

If you don't recall, a few months ago, we noted that Panetta was likely to get off scott free, despite revealing a ton of classified info, including the names of the Navy SEAL officers who shot Osama bin Laden to film maker Mark Boal, who wrote the screenplay for Zero Dark Thirty. Of course, in an effort to protect "important people" we wouldn't have even known about Panetta's revealing classified information if a report by the Pentagon's Inspector General hadn't leaked. Of course, after the leak, federal officials focused on tracking down those who leaked the report but have done absolutely nothing about Panetta who clearly leaked very sensitive information. It's a "high court" / "low court" situation where powerful people break the law in much worse ways and are left alone, while people without power are bulldozed by the system.

From under the bulldozer, Kiriakou questions how that's reasonable. He points out that part of the reason he took his plea deal was because, under the Espionage Act (as we've discussed before) all evidence of intent and purpose are inadmissible, allowing the government to paint perfectly innocent actions as nefarious. And that's clearly what they were going to do to him. And yet, these same officials say that Panetta's (much bigger) revelation of classified info was okay because it was an accident, and he didn't intend to reveal that info to a filmmaker. Kiriakou notes the double standard that now has him behind bars:

If an intent to undermine U.S. national security or if identifiable harm to U.S. interests are indeed not relevant to Espionage Act enforcement, then the White House and the Justice Department should be in full froth. Panetta should be having his private life dug in to, sifted and seized as evidence, as happened to me and six others under the Obama administration.

When the transcript of Panetta's speech and his inadvertent leak came to light in January, a CIA spokesman told the Associated Press that the agency had subsequently "overhauled its procedures for interaction with the entertainment industry." Such internal reviews are fine and good, but equality before the law is the rule in America. Your job title, your Rolodex and your political friendships are not supposed to trump accountability. Except when they do.

Stories like this aren't just distressing when you consider basic concepts like fairness, proportionality and common sense. They also undermine faith in our government, and -- more importantly -- its credibility.

http://www.techdirt.com/articles/20140312/15032826556/whistleblower-john-kiriakou-questions-why-hes-jail-while-former-cia-boss-leon-panetta-is-free.shtml

KoKo

(84,711 posts)
23. Some were trashing Whistleblowers here...saying there were none before Snowden...
Fri May 30, 2014, 09:46 PM
May 2014

the PBS Documentary from FRONTLINE showed what those early Whistleblowers went through when they tried to stop the Massive Surveillance under Bush...and how their lives and careers were destroyed. Yet so little interest in that Documentary from PBS...here by those who still seem to want to attack Greenwald and Snowden when they don't go past some personal dislike to review the facts that have come out and are still coming out about Snowden's Revelations which have nothing to do with their personal dislike of the people who disclose the truth.

They seem to not be able to get beyond their personal dislike and focus on the Information Revealed. Hard to understand that.....

Thanks for this post.

gratuitous

(82,849 posts)
14. Yep, a criminal proceeding is not a civil proceeding
Fri May 30, 2014, 04:08 PM
May 2014

The government, after taking custody of Edward Snowden, would spend years working on the charges to be brought, and through motion practice carefully circumscribe the issues, evidence and testimony that would be allowed. If you want to see how that works, consider the case of Cecily McMillan, recently convicted of assaulting a police officer during an Occupy protest. Carefully excluded from the jury's consideration was any evidence or testimony about why Occupy was protesting, why the police were sent in, and why the cop grabbed and groped McMillan from behind. The only issue before the jury was whether McMillan elbowed the cop she couldn't see and who hadn't identified himself.

For that, she's going to the slammer for three months.

Anyone want to place bets on how long Snowden would serve, and whether or not he'd have a chance to "make his case"? Like John Kiriakou and Cecily McMillan, Snowden would similarly be prevented from testifying about his motive or any facts outside the strictly defined parameters of the charges against him. Any such testimony or evidence would be excluded in the trial. Anyone who says otherwise is indeed either ignorant or disingenuous.

Shame on Secretary Kerry.

treestar

(82,383 posts)
19. Every motion is a legal issue ruled on and can be appealed.
Fri May 30, 2014, 08:15 PM
May 2014

Now I see that if Eddie did come back, every single point of the trial that went against him would be deemed the most unfair thing ever, in spite of case law and procedural rules that have been applied to countless defendants before. If they are "prevented from testifying" it's because there is a rule to apply to them. They don't get to use the court as a soap box, it's only about whether they committed the crime. They don't get to tie the court up for months ranting on about things that have no bearing on whether they committed the crime.

gratuitous

(82,849 posts)
25. Try again
Sat May 31, 2014, 09:27 PM
May 2014

The only legal issues that would be brought into court would be brought by the prosecution. You are correct that the court would not be used as Snowden's soap box, but that would be because the prosecution would strictly circumscribe the limits of what could and would be presented. (Side note: It's the same prosecutorial tactic used in both federal and state courts so Cecily McMillan's experience is germane to the discussion.)

When Secretary Kerry said that Snowden should come back to be tried and "make his case," Kerry was being either remarkably ignorant or disingenuous. Every criminal attorney in the country (prosecution and defense) knows exactly how a trial would go, and that it would take years to get to a trial. During that time, Snowden would probably be held in solitary confinement, subjected to the same cruelty and torture similar defendants receive.

And all these new law and order Democrats who have sprung up wouldn't give a shit.

struggle4progress

(118,041 posts)
20. The McMillan case was prosecuted under NY law, hence cannot be on-point
Fri May 30, 2014, 08:20 PM
May 2014

McMillan's defense, moreover, was theoretical: she did not actually testify about how she happened to elbow the cop but rather testified she had been drinking and did not recall doing so

Cha

(295,926 posts)
16. Yeah, Listen to all these idiots, Snowden, and don't be whining about wanting to
Fri May 30, 2014, 08:07 PM
May 2014

come home anymore. Putin has your back.

struggle4progress

(118,041 posts)
17. Cole is getting sloppy. The UN Special Rapporteur never issued any sort of official
Fri May 30, 2014, 08:09 PM
May 2014

finding that Manning had been tortured, nor did he develop any evidence of that, though he did later express a personal opinion to a newspaper that he thought Manning had been tortured

Nor was the Espionage Act enacted "when President Woodrow Wilson .. was trying to take the US into the war" -- it was passed after the declaration of war; and most convictions under the Espionage Act and the amending Sedition Act came after the war

Kiriakou was a torture apologist, who made Bush administration waterboarding public so that he could praise its supposed effectiveness, and he wasn't prosecuted for any of his remarks about torture, nor was he prosecuted under the 1917 Espionage Act: he was prosecuted under the Reagan-era Intelligence Identities Protection Act

treestar

(82,383 posts)
18. they really have to stop with this crap
Fri May 30, 2014, 08:13 PM
May 2014

It's a bullshit excuse. If they don't like the Espionage Age, they can challenge it, but too bad, it was voted in and signed into law.

The UN board has probably found a lot worse from other countries. I mean it's one thing to defend somebody but to go out of your way to find victimization where there is none is irrelevant. Manning is subjected to the same system as everyone else would be.

Nobody is forced into a plea bargain. Bullshit. He could have appealed that!

bobduca

(1,763 posts)
22. Yeah there are way worse fascist laws in other countries, you America haters!!!
Fri May 30, 2014, 09:42 PM
May 2014

Race you to the bottom! ARGLEBARGLE!

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