

US Attorney General Holder: We Won't Torture or Kill Snowden - tippytop
http://www.newyorker.com/online/blogs/closeread/2013/07/holder-we-wont-torture-or-kill-snowden.html

======
mixmax
If the general attorney has to step up to the podium and assure an American
public that a whistleblower won't be killed or tortured you've got a country
in dire straits.

Especially since it seems that not all Americans believe him.

~~~
bparsons
His statement said nothing about using "enhanced interrogation methods"
against Snowden.

By their own legal definition, the US government "tortures" no one. Water
boarding, sensory deprivation, psychological torture, stress positions and
starvation are not considered torture by the administration.

~~~
recusancy
Utter bs... Obama and Holder have stated repeatedly that "enhanced
interrogation" IS torture.

On January 22, 2009 President Obama signed an executive order requiring the
CIA to use only the 19 interrogation methods outlined in the United States
Army Field Manual on interrogations.
[http://www.whitehouse.gov/the_press_office/EnsuringLawfulInt...](http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/)

~~~
bparsons
Check out the UN investigation into the treatment of Bradley Manning.
[http://www.guardian.co.uk/world/2012/mar/12/bradley-
manning-...](http://www.guardian.co.uk/world/2012/mar/12/bradley-manning-
cruel-inhuman-treatment-un)

------
RexRollman
Considering that the US Government no longer considers things like
waterboarding and sleep depravation to be torture, I take little comfort in
Holder's statements.

~~~
anigbrowl
Untrue. One of the first acts of the current administration was to ban
waterboarding and other interrogation methods that are widely considered to be
torture:
[https://en.wikipedia.org/wiki/Waterboarding#Obama_administra...](https://en.wikipedia.org/wiki/Waterboarding#Obama_administration)

The historical revisionism in this thread is nonsensical, I think you all know
perfectly well that there's a sharp partisan divide on this issue.

~~~
detcader
Is there?
[http://www.salon.com/2007/12/09/democrats_9/](http://www.salon.com/2007/12/09/democrats_9/)

And solitary confinement is still fine, apparently. If people were
waterboarded again, would anyone be punished? Maybe the private contractor
doing it would be fined a portion of their annual profits. Maybe someone might
step down -- down right into a private industry position or speaking tour.
Seemingly every year since 2007 up to 2012, more and more people were pardoned
for torturing. What's different in 2013?

~~~
cabalamat
> If people were waterboarded again, would anyone be punished?

Yes -- the whistleblower who said people were being waterboarded.

~~~
lostlogin
Untrue, the US executed the Japanese who tortured US servicemen with water
boarding in WWII. Just make sure you're certain what side you're on before
doing it, and you'll be fine.
[http://en.m.wikipedia.org/wiki/Waterboarding](http://en.m.wikipedia.org/wiki/Waterboarding)

------
jlgaddis
It would be really nice to know how they legally interpret "torture" and
"kill" since so many other common English words often mean completely
different things to the U.S. Government.

~~~
recusancy
[http://www.whitehouse.gov/the_press_office/EnsuringLawfulInt...](http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/)

------
jluxenberg
Snowden is charged [1] with:

    
    
      * 18 USC 641 - Theft of government property 
      * 18 USC 793(d) - Unauthorized communication of national defense information
      * 18 USC 798(a)(3) - Willful communication of classified communications intelligence information to an unauthorized person
    

None carry the death penalty. All carry a prison sentence of "not more than
ten years."

[1] [http://apps.washingtonpost.com/g/documents/world/us-vs-
edwar...](http://apps.washingtonpost.com/g/documents/world/us-vs-edward-j-
snowden-criminal-complaint/496/)

[EDIT formatting]

~~~
cheald
Of course, we're talking about a government that is in this predicament
precisely because they just ignore the law when convenient.

~~~
meepmorp
> Of course, we're talking about a government that is in this predicament
> precisely because they just ignore the law when convenient.

No. The NSA surveillance is, at least putatively, permitted by the current
laws in the US. You can argue about the appropriateness of the laws, even
their constitutionality, but the NSA (and larger federal government) is almost
certainly not ignoring the law in this case.

~~~
DannyBee
Actually, they kind of are.

There are no _cases_ directly on point, and they are arguing by analogy to
existing cases where it was held retrieving small amounts of phone data about
one or two individuals did not violate a reasonable expectation of privacy,
and thus, not a search

This is not the same as "what they are doing is permitted by the current laws
of the united states".

I'm aware folks like Orin Kerr think this doesn't make a doctrinal difference:
[http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-
fo...](http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fourth-
amendment-a-constitutional-analysis-of-collecting-and-querying-call-records-
databases/)

The thing is, he's an academic (prior to his current job, his job at the DOJ
CCIP division was being an expert in those notices you see when you access
government computer systems). He likes to think in academic terms about
whether things should matter. For example, he also believed the "mosaic
theory" was a bunch of bullshit and would be struck down by every level right
up until the supreme court fully endorsed it (see, e.g,
[http://www.volokh.com/2010/08/06/d-c-circuit-introduces-
mosa...](http://www.volokh.com/2010/08/06/d-c-circuit-introduces-mosaic-
theory-of-fourth-amendment-holds-gps-monitoring-a-fourth-amendment-search/)
and other posts)

So while i certainly trust his view of "the state of the caselaw as it
currently exists", i take his view of "what a court is likely to decide" with
a huge grain of salt. On that front, IMHO, he's been wrong more than he's been
right.

For example, when he says "If obtaining pen register information on one user
is not a search, the obtaining that pen register information for 100 or 10,000
or 1,000,000 or more users is still not a search. Katz tells us that the
Fourth Amendment protects “people, not places,” and it’s not clear how
surveillance that is not a search when provides information about one person
can become a search when it provides information about many."

This tells you everything you need to know. It is a typical ivory tower
viewpoint. He doesn't see how a judge is going to decide that there is some
line that has been crossed when you do something to a million people instead
of 1. As the saying goes, "bad facts make bad law". If everything was
doctrinal and academic, bad facts wouldn't matter.

FWIW: The FISA authorization is completely and totally irrelevant in this
case. Entirely. The fact that the FISA court said "sure, whatever" does not
make something _legal_ , only _authorized_ , because they are not ruling on a
constitutional challenge, only the validity of a search warrant. These are not
the same, no matter how much the government wants it to be.

This is the same as a valid search warrant that later turns out to have been
facially invalid; It is not a legal search warrant that has "gone bad". It is
illegal. It was authorized, but illegal.

~~~
mjn
_So while i certainly trust his view of "the state of the caselaw as it
currently exists", i take his view of "what a court is likely to decide" with
a huge grain of salt. On that front, IMHO, he's been wrong more than he's been
right._

As a minor defense of Kerr, I think he does do some good descriptive/realist
analysis of how courts are likely to actually decide as well, as in his
"equilibrium-adjustment theory of the 4th amendment":
[http://www.harvardlawreview.org/media/pdf/vol125_kerr.pdf](http://www.harvardlawreview.org/media/pdf/vol125_kerr.pdf)

I think there's a good argument that equilibrium-adjustment could actually
explain courts' desire to make the rare/pervasive distinction here that Kerr
elsewhere claims doctrinally shouldn't work.

~~~
mjn
Responding to myself, in case anyone runs across this. Kerr briefly
acknowledges this point in his article against the mosaic theory:

 _The mosaic approach is animated by legitimate concerns: it aims to maintain
the balance of Fourth Amendment protection as technology changes, a method I
have elsewhere called "equilibrium-adjustment." But it aims to achieve this
reasonable goal in a peculiar way. By rejecting the building block of the
sequential approach, the mosaic theory would be very difficult to administer
coherently. Even if courts could develop answers to the many questions the
theory raises, doing so would take many years—by which time the technologies
regulated by the theory would become obsolete. The mosaic theory would also
deter enactment of statutory privacy regulations and force judges to consider
questions that they are poorly equipped to answer. If courts must broaden
Fourth Amendment rules in response to new technologies, the better approach is
to rule that certain steps are always searches. The model should be the
Supreme Court's famous decision in _Katz v. United States _, not the
concurring opinions in_ Jones _._

------
finkin1
Unfortunately, there is basically no trust left in the US Government. They've
used it all up. Why would Snowden believe proven-to-be pathological liars?

The US Government will put you in solitary confinement for years and
waterboard you and it's not considered 'torture.'

------
cheald
Holder pretty much _has_ to say this (because seriously, what is he going to
say? "Go ahead and give him asylum, we'd just torture and execute him if we
got him back."), but it's abundantly clear what the US Govt thinks of Snowden
and his Constitutional rights (which, mind you, supersede any other part of
the USC) [1][2].

This is an administration that has killed US citizens without due process,
tortured prisoners, and deeply extended the grasp of the police state. We're
supposed to trust that they'll just be nice guys and do the right and legal
thing now?

[1]
[http://www.tubechop.com/watch/1318893](http://www.tubechop.com/watch/1318893)

[2]
[http://www.techdirt.com/articles/20130714/00393923792/white-...](http://www.techdirt.com/articles/20130714/00393923792/white-
house-believes-ed-snowden-shouldnt-have-any-free-speech-rights-attacks-russia-
letting-him-speak.shtml)

------
zw123456
Golly, how magnanimous of you, it is almost as if you are a human.

~~~
noonespecial
No, but he plays one on TV.

------
jlgaddis
Did anyone check to see if he had his fingers crossed behind his back when he
said it?

------
cupcake-unicorn
Don't they realize how weird it is for them to have to be spelling it out like
this? There's a bigger problem when it's just assumed by everyone the
government is going to do this...

~~~
baddox
It's not that weird, since they are known to torture whistleblowers.

~~~
cupcake-unicorn
Well, that's what makes it so weird, honestly. By making the statement,
they're in a way admitting that yes, that's what they're known for, otherwise
it wouldn't have to be clarified.

You'd think that if they could keep Prism under wraps for so long, that they'd
have resources to cover up the torturing stuff!

------
dictum
>Wyden then asked Director Clapper, "Does the NSA collect any type of data at
all on millions or hundreds of millions of Americans?" He responded, "No,
sir." Wyden asked "It does not?" and Clapper said "Not wittingly. There are
cases where they could inadvertantly perhaps collect, but not wittingly."

>On July 1, 2013, Clapper issued an apology, saying that "My response was
clearly erroneous – for which I apologize."

~~~
nathan_long
A contemptible apology. "Erroneous" strongly implies a mistake, and thereby
adds another lie to the lie he's "apologizing" for.

~~~
tzs
What else was Clapper supposed to say to Wyden's question? If he answered
truthfully, he'd illegally reveal classified information. If he said that he
could not answer without revealing classified information, he'd effectively
reveal classified information. Wyden knew all this and asked the question
anyway, most likely to try to get Clapper to reveal classified information.

~~~
nathan_long
You're saying he was justified in lying. I disagree, but let's leave that
aside.

He could have said "I lied, but I had to for national security reasons. I
don't apologize. The question was inappropriate and Wyden should apologize for
asking."

He could have said "I lied, and I shouldn't have. I apologize." (A resignation
would be nice.)

But he's quoted as saying "My response was clearly erroneous – for which I
apologize."

To me, this sounds like "I thought I was telling the truth but later learned
that my statements were incorrect. I apologize."

Which is itself either 1) an admission of incompetence or 2) an additional
lie. #2 is much more likely.

Do you see why I called this "apology" contemptible?

~~~
dllthomas
I presume he could also have refused to answer.

------
tareqak
BBC version of the news available here: [http://www.bbc.co.uk/news/world-
europe-23468459](http://www.bbc.co.uk/news/world-europe-23468459).

Link to actual letter:
[http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/26_07_13_attorney...](http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/26_07_13_attorney_general_letter_to_russian_justice_minister.pdf)

Edit: fixed typo

------
detcader
Just like how Bradley Manning was treated totally legally and torture-free
[http://www.emptywheel.net/2013/07/26/eric-holder-well-
maybe-...](http://www.emptywheel.net/2013/07/26/eric-holder-well-maybe-just-a-
little-forced-nudity-and-solitary-confinement/)

------
charonn0
I wonder if this constitutes the administration's promised response to the
Snowden pardon petition[1]

[1]: [https://petitions.whitehouse.gov/petition/pardon-edward-
snow...](https://petitions.whitehouse.gov/petition/pardon-edward-
snowden/Dp03vGYD)

------
GigabyteCoin
What a ridiculous statement for a government official to make in a country
that has sentences determined by a democratic court system.

How can Holder know what the punishment will be on top of what the jury will
decide?

~~~
mpyne
Because there is a cap on what punishments are allowed, whether the jury likes
it or not?

All Holder has to do is prevent his US Attorney from issuing charges where
death penalty is an option and that part is dealt with. Torture is also not
permissible _anyways_ so it's kind of redundant having to mention it. If the
police do torture Snowden at least one of the many judged in the
district+appellant review chain will throw the case out completely and he's a
free man (for example, see Ellsberg who had his charges thrown out for much
much less than torture).

~~~
GigabyteCoin
I was referring to the death penalty when I made the parent comment. Not the
possibility of him being tortured.

Is treason not a crime punishable by death in the United States?

According to this link, it is:
[http://en.wikipedia.org/wiki/Treason#United_States](http://en.wikipedia.org/wiki/Treason#United_States)

~~~
mpyne
Unfortunately for that argument, treason carries a very specific,
Constitutionally-set, definition. It is the only crime with such a definition,
and Snowden is not likely to ever be convicted of it for that reason.

------
andrewflnr
Even if we believed him, it doesn't matter. Sending him to prison forever is
still unacceptable. Ask me again when you're ready to give him a full pardon.

------
skimmas
" He could even get a lawyer. "

~~~
pyrocat
To be fair, that was a quote from the guy who wrote the commentary, not from
Holder.

------
appleflaxen
This is the face of Fascism in America.

------
michaelrhansen
Of course he won't. He will be tortured at Gitmo.

