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Comment by jcranmer | Hacker News Reader

When Daniel Ellsberg leaked the Pentagon Papers, he didn't immediately flee to a foreign country to avoid prosecution. Indeed, he willingly submitted to arrest (under the same law that Snowden is charged under).

That Snowden appears to be trying to run away from the consequences of his actions makes him less of a hero in my eyes.

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Daniel Ellsberg himself on Edward Snowden:

Yet when I surrendered to arrest in Boston, having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day. Later, when my charges were increased from the original three counts to 12, carrying a possible 115-year sentence, my bond was increased to $50,000. But for the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn’t have done that abroad, and leaving the country never entered my mind.

There is no chance that experience could be reproduced today, let alone that a trial could be terminated by the revelation of White House actions against a defendant that were clearly criminal in Richard Nixon’s era — and figured in his resignation in the face of impeachment — but are today all regarded as legal (including an attempt to “incapacitate me totally”).

[...]

He would almost certainly be confined in total isolation, even longer than the more than eight months Manning suffered during his three years of imprisonment before his trial began recently. The United Nations Special Rapporteur for Torture described Manning’s conditions as “cruel, inhuman and degrading.” (That realistic prospect, by itself, is grounds for most countries granting Snowden asylum, if they could withstand bullying and bribery from the United States.)

When Daniel Ellsberg leaked the Pentagon Papers, the United States wasn't quite so much in the habit of, among other things, legally justifying torture to extract information as it is apparently today.

The legal and political ecosystem has fundamentally shifted post-9/11, and I don't know it's fair to hold a modern whistleblower to a standard that existed in the '70s.

(That's a long-winded way of saying "I wouldn't trust the government either." ;) )

It's a weird argument. Not only do US people want a hero, but the hero must suffer.

No, the "hero" (and I don't think Snowden is one, but I am biased from personal experience) should, if he believes himself to be in the right, defend himself in front of a jury of his peers. That's not the same thing as "suffering"; that's how the judicial system works.

Why? What's the connection between believing one's actions to be right and surrendering to the justice system? Especially if he believes, no doubt correctly, that he would be found guilty and punished severely.

Except, of course, that the law he is charged under -- the Espionage Act of 1917 -- does not permit a public interest defense.

Would you also say that James Clapper should stand trial for perjury?

Would you say the same if the hero was from Russia or North Korea or Syria?

Would it be OK to leak documents from there and then flee their judicial systems?

I would definitely support someone outing and then fleeing Russia. In fact we do it all the time - it's called political asylum.

An impartial jury would be bound to rule him guilty, because he did break a law.

It doesn't mean that he's not a hero, though, because many people didn't even know it was the law until he did. And that it is a bad law.

But no, he doesn't have an obligation to suffer to prove that he had a point.

An impartial jury would recognize that breaking that law was the right thing to do because the law was wrong and unjust, and therefore should be abolished. It's not like the US legal system came down from heaven.

Juries have many times chosen to take a more holistic view of the law, determining that sometimes prosectution is not in the public interest, known as jury nullification.

See especially the case of a British leaker: https://en.m.wikipedia.org/wiki/Clive_Ponting

Juries are in no way bound to find even the most egregiously culpable defendants guilty of committing a crime. Choosing not to do so is not claiming the person did not break the law, but a claim that the law itself was wrong.

It happens every once in a while and is an important feature, not bug of the American judiciary.

Jury nullification is a right, yes. However, jury instruction will very deliberately claim otherwise, and most people do follow it (and if, during jury selection, anyone hints at understanding what it is, they will almost certainly be excused). So realistically it's a very inefficient check.

> An impartial jury would be bound to rule him guilty

Then why are you pushing this lie forward? You should be doing your part to inform Americans of their rights, not mislead and disempower them.

I consider jury nullification to be a right. I don't consider it to be a moral duty. An impartial jury, from that perspective, is the one that rules according to the law as written.

(I wouldn't do so - but I wouldn't consider myself impartial, either.)

An impartial [1] jury wouldn't immediately accept the word of the law as correct.

In US courts, the letter of the law itself is one of the disputants. It is just as vulnerable to questioning as the prosecutor's case and the defendant's case. That's why court rulings actually do affect the law itself (judicial precedence), they don't only affect a particular case. Again, this is all by design.

Regardless, your response is totally irrelevant. I didn't ask about the morality of anything. Your statement that a jury is obligated to find in any direction is totally false. There is no such obligation in the US, nor will there ever be.

[1] Impartial: Treating all rivals or disputants equally

I believe there's some confusion here between legal and moral obligations. There's no legal obligation for the jury to find in any direction, yes - that is the basis for nullification. However, whether nullification is an intentional feature, or an unavoidable but undesirable side effect of the jury trial system, is very much up for debate. If you look at juror's oaths, they generally tend to embrace the latter approach. For example:

"You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences"

So when a juror nullifies, they break that oath. Insofar as that oath exists, it sets society's expectations of what the jury does.

"Impartial" was perhaps not the best choice of word for this, I agree.

Is that a surprise in the Christian context?

Yes. Christians do not wish to be like Judas, Pilate, etc.

I was referring to the need for a martyr. Though if you are biblically minded, then by allowing Snowden to be crucified we are bringing a curse upon ourselves, cf Barabbas.

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