
What the U.S. Should Do with Edward Snowden - danielmiessler
https://danielmiessler.com/blog/what-us-should-do-edward-snowden/
======
dalke
"Edward Snowden is a criminal"

The Espionage Act of 1917 is a horrid piece of legislation, and the
outsourcing of US government operations to private business means that
contractors like Snowden can't use the same whistleblower protections that
nominally would cover a government employee doing exactly the same act.

"We can’t have a deluge of people with privileged access thinking they can
become the next super-patriot by leaking classified data."

Ha-ha-ha! Did you hear about how David Petraeus gave classified secrets to his
mistress? Then lied to the FBI and others about it? But because he was a four
star general, with the right contacts and money, he gets a misdemeanor charge.

So why not offer Snowden exactly the same deal as Petraeus - misdemeanor and
two-year term of probation?

~~~
danielmiessler
Maybe it's different for a decorated war hero to show a notebook to a mistress
than for some random contractor to steal thousands of classified documents and
release them on the Internet.

~~~
dalke
So it's okay for the ex-head of the CIA - someone who knows the laws regarding
classified information and signed over a dozen NDAs to that effect - to commit
felonies by disclosing national defense information and classified
communications intelligence materials to non-authorized people, and to lie to
the FBI, because in the past he was a decorated war hero?

What other felonies is Petraeus allowed to do because of his glorious past?
Can he start shooting random people? Rob banks? Reveal the names of undercover
CIA agents? Where in the law does it say there's a special exception for war
heroes?

What's to prevent other decorated war heroes from being copycats, and using
their special stay-out-of-jail status to commit felonies in order to get laid?
Surely some future Mata Hari knows to target these sorts of people, so they
need to be extra careful, and be under higher scrutiny, no?

It's also felony for a Congressional Medal of Honor recipient to sell the
medal. What's the logic that says that being a war hero excuses someone for
multiple felonies related to the unauthorized disclosure of classified
information, but not the felony of selling a piece of metal or ribbon with no
national security impact?

(BTW, to be technically correct, Snowden did not release the documents to the
Internet. He released them to journalists. The journalists were the ones to
publish the documents on the Internet.)

~~~
danielmiessler
My point is that one was a lapse in judgement that resulted in very little
damage, while the other was a calculated maneuver that changed the
intelligence world forever.

That's why they're different.

~~~
dalke
It appears that you are no longer using "decorated war hero" as justification
for why Petraeus shouldn't be charged for the felonies that he committed. Is
that because you no longer believe that it should be a get-out-of-jail card
that lets war heroes commit a felony?

Instead, it's okay to commit a felony so long as there's "very little damage"?
(I suppose also that he needs to feel real sorry about it.)

That's very odd ethics. When it happens to lower ranked people they get sent
to jail. Foreigners as well, as the case of Wen Ho Lee, where government
misconduct and misrepresentations meant that Lee couldn't apply for bail and
was put into solitary confinement, on charges of stealing secrets that in the
end were false accusations.

For that matter, Martha Stewart "was found guilty in March 2004 of felony
charges of conspiracy, obstruction of an agency proceeding, and making false
statements to federal investigators". Certainly that also only caused "very
little damage." Why is she a felon for (among other things) lying to
investigators, when Petraeus lied to the FBI but will only get a misdemeanor
charge for all of the crimes he committed?

The original commentary said that hard punishment is justified to prevent
"copycats from recklessly harming national security". If that logic is
correct, then I again ask why the same doesn't hold for ex-heads of CIA?
What's to prevent future CIA heads from doing the same thing? Their future
lover might be a Mata Hari instead of a fawning biographer.

I noticed, btw, that Petraeus caused "very little damage" while Snowden
"changed the intelligence world forever". You didn't, however, say if that was
good change or bad change. Did Snowden cause more damage than Petraeus? Can
you quantify the damage?

And this brings me back to my first point. The Espionage Act of 1917 is a
horrid piece of legislation. It doesn't consider any balancing of factors. If
the change to the intelligent world turned it into a paragon of respect for
the ideals of freedom, liberty, etc., then none of that would count in
Snowden's favor. We know that from the Pentagon Papers, where, Daniel Ellsberg
(who published the Papers) says (see
[http://www.theguardian.com/commentisfree/2014/may/30/daniel-...](http://www.theguardian.com/commentisfree/2014/may/30/daniel-
ellsberg-snowden-fair-trial-kerry-espionage-act) ):

> But when I finally heard my lawyer ask the prearranged question in direct
> examination – Why did you copy the Pentagon Papers? – I was silenced before
> I could begin to answer. The government prosecutor objected – irrelevant –
> and the judge sustained. My lawyer, exasperated, said he "had never heard of
> a case where a defendant was not permitted to tell the jury why he did what
> he did." The judge responded: well, you're hearing one now.

> And so it has been with every subsequent whistleblower under indictment, and
> so it would be if Edward Snowden was on trial in an American courtroom now.

> Indeed, in recent years, the silencing effect of the Espionage Act has only
> become worse. The other NSA whistleblower prosecuted, Thomas Drake, was
> barred from uttering the words "whistleblowing" and "overclassification" in
> his trial. (Thankfully, the Justice Department's case fell apart one day
> before it was to begin). In the recent case of the State Department
> contractor Stephen Kim, the presiding judge ruled the prosecution "need not
> show that the information he allegedly leaked could damage US national
> security or benefit a foreign power, even potentially."

For whistle blowers, the government prosecutors don't need to show any damage
at all. Not even a little. Why wasn't Petraeus charged under the same
interpretation of the same laws? Are we not all equal under the law?

~~~
danielmiessler
[https://danielmiessler.com/blog/conflating-petraeus-
snowden/](https://danielmiessler.com/blog/conflating-petraeus-snowden/)

~~~
dalke
If you think that's connected to what I wrote then I haven't explained the
issue well enough. I haven't stated that narrative you wrote.

Point #1: The Espionage Act of 1917 is a horrid piece of legislation. The
defendant can offer no defense to justify it, as Ellsberg found out. The
prosecution doesn't need to show that there's even the potential to cause
harm. What you wrote, saying Snowden should be considered a patriot deserves
at most 10 years in federal prison, is completely ignored by the law. There no
legal defense for "Snowden based on his intentions".

Simply put, nothing you wrote in defense of Snowden is relevant to his
prosecution.

Point #2: I brought up Petraeus in response to your statement that:

"This is the balanced response that is needed to keep copycats from recklessly
harming national security while at the same time strengthening our collective
priority on government transparency."

We also need a way to keep copycat ex-CIA heads and generals from sharing
secrets with unauthorized people and from lying to FBI agents. We have laws
which define the rules. They make no exception for generals, and Petraeus
signed over a dozen NDAs where he agreed that he would not reveal any secrets.
These are the rules he's subject to, but the "balancing" here is being done
completely pre-trial, with no transparency, in order to avoid prosecution
under the laws that clearly say that Petraeus committed several felonies.

It seems that if you're friends with people in high places, you get special
favors. If they don't like you, you get treated like Wen Ho Lee or worse. This
is not justice under the law. If Petraeus, or Scotter Libby, or others with
high position get little more than a handslap, while Lee gets solitary
confinement, then I have little faith that we have a "balanced response".

Point #3: As I pointed out, It's not simply a matter of Petraeus sharing
secrets that went no further than his biographer. He also made false
statements to the FBI. This is a felony under 18 U.S.C. Section 1001. It's the
law that made Martha Stewart a convicted felon.

I mentioned this earlier. Do you ignore it because it doesn't fit the
narrative you want to impose upon those you disagree with? This speaks ill of
you.

Point #4: Being a decorated war veteran is irrelevant. There is no special
get-out-of-felony card written in the law for being a veteran, decorated or
otherwise. Or put it this way, if Snowden had been a decorated war veteran -
say, a Purple Heart - how would that change things for you? What if he had a
Congressional Medal of Honor? Two Medals of Honor? What if Petraeus had been
the one to leak the information, rather than Snowden? What if Petraeus'
biographer had been the one to the leak the information?

If being a war hero is relevant, then surely all of those cases would make you
want to be more lenient, yes? How much lenient?

If you can't give a good answer - and I really don't see how that's possible -
then I'll assume that your reference to war hero status is a post hoc
justification that has no actual bearing on the matter but exists mostly for
the rhetorical sympathy.

