You've got to see the irony in taking asylum in a country where the kinds of spying he blew the whistle on in the first place are brazenly displayed on public television:
http://boingboing.net/2013/07/08/snowden-and-venezuela-my-bi...
http://boingboing.net/2013/07/08/snowden-and-venezuela-my-bi...
People keep talking about what Snowden said, but why do they not look at what he did?
If he really wanted to be out of the news it would be easy. Just ask Thomas Drake.
Instead he's turned himself into a longtailed human interest story, despite his protestations to the contrary. If he's smart enough to act as a network structural hacker then surely he's smart enough to recall what types of stories drive the most media coverage in the U.S.
His job in this was to get the evidence out there, let civil rights groups use it to carry on the fight, and to get himself back out of the media spotlight. Instead he's and WikiLeaks are sucking up all the oxygen from the EFF and ACLU.
If he doesn't accept them he is going to be sent into US and tortured. It's either asylum from a non 'free' country or torture.
Do you consider solitary torture? Whistleblowers have been subjected to brutal solitary conditions, and they don't even consider him that.
http://www.huffingtonpost.com/2013/05/30/john-kiriakou-lette...
http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_...
I think most people don't think it's torture simply because they don't really know what it's like, haven't experienced it, can't readily imagine why it would be painful, etc.
But never mind that—I'm more curious about this:
Otherwise, it becomes a tool for peddling minority social viewpoints, which undermines its legitimacy in other regards. We're already feeling the effects of that today.
What minority social viewpoints and what effects?
There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement.
> What minority social viewpoints and what effects?
The death penalty would be a good example. Right now, support for the death penalty is around 60% among the American public. If a Supreme Court came along and found that "the living Constitution" meant that the death penalty was unconstitutional, despite the death penalty being common at the time of the founding and also supported by a majority of the public, that would undermine peoples' faith in the Constitution and the Supreme Court as an actual common agreed-upon framework as opposed to just another political tool.
Sometimes the Supreme Court has to spend that political capital, to bootstrap social change, but even when the decision is "right" in retrospect, it has an injurious effect on the institution itself. E.g. it becomes a lot easier for conservatives to dismiss the Supreme Court's opinion on something like giving Guantanamo prisoners habeas corpus rights when they can point to something like Roe v. Wade as evidence of the Court's political nature. It isn't just conservatives, of course. The Court lost enormous credibility among liberals in the 1920's and 1930's when it found all sorts of "economic rights" in the due process clause to strike down FDR's popular policies.
At this moment in history, faith in the Constitution and the Supreme Court is at historical lows on both sides, as a result of decades of liberal Courts using the bench as an instrument for social change on issues where there was no clear-cut consensus. Now, I happen to agree with those specific social issues, but that doesn't change the fact that this change came at high cost to the Court itself.
Originalism has a major advantage, and it is that when the Court isn't constantly finding new things in the Constitution, it can speak with far more authority on issues that were part of the original intent of the founders.
For contracts relating to small situations that would make sense, but for a piece of writing that is meant to apply to a whole country written by a few old men centuries ago is that really the most prudent choice?
We know so much more than they did -- e.g. science now tells us that we can actually quantify pain (both physical and emotional) with remarkable accuracy [1]. With the understanding and new knowledge that has become available in recent time it's likely that the founders would have had a totally different take on things, so I see slow and small nitpicky rectifications on minor points to be misguided in numerous respects since for all one knows founders' approach to several issues would have been altogether different if they had access to the abundant new findings and data that has only become available recently.
I'll give you an example: before I started getting into John Rawls writings, some contemporary philosophy (a lot of Sam Harris stuff), some writings on determinism, I was a libertarian. It was my access to new knowledge that informed my world view with a new and more scientifically rigorous take on things.
[1]: http://www.popsci.com/science/article/2013-04/brain-scans-of...
http://law.wustl.edu/journal/22/p325grassian.pdf
I had a longer reply, but somehow I don't think you're listening if the New Yorker is hyperliberal. Obviously solitary is not unusual, the questions are whether it's cruel, and whether it prevents recidivism and enables employment upon release.
I didn't say the New Yorker is hyperliberal. I said that the idea that solitary confinement is torture is hyperliberal (literally, "more liberal" than the liberal mainstream viewpoint).
> and whether it prevents recidivism and enables employment upon release.
That's absolutely irrelevant to Constitutionality. Something can be a stupid, ineffective, policy and yet be Constitutional.
Your exact words were, "only a tiny minority of hyperliberals would consider to be true". Since I had linked to the New Yorker which explores the issue in depth and gives significant credence to the idea, your aspersion quite apparently included the New Yorker. To say that it didn't is either revisionist, or you weren't clear with what you originally wrote. The New Yorker is a mainstream liberal publication.
> That's absolutely irrelevant to Constitutionality.
Agreed, but you also ignored the question about cruelty. I brought up those other points to make it clear that I'm not hyperliberal, not even necessarily liberal. I think it's good for our economy if ex-cons are able to work.
I believe the New Yorker and J. Law & Policy articles make a strong case for cruelty.
However, if it were possible to do this without the subsequent mental trauma that would follow then that might be a different story. E.g. virtual social interaction (with other prisoners/guards) might be feasible, we certainly seem to get a lot of people who wall themselves away from others IRL so that they can play their online video games.
But even with that I don't see how that would be a more resource-efficient way to handle the task of rehabilitation where possible and humane segregation from society for the rest.
I think we have to figure that at some point almost any 'stick' in a carrot/stick system can, with overuse, become more dangerous to mental health than useful as a behavior modifier.
A day or two ago you said it's "debatable" whether or not torture happened at Guantanamo Bay ( https://news.ycombinator.com/item?id=6007152 ). Me? I think strangling and pulling someone on a leash while the individual is naked is torture: http://i.imgur.com/egrawlu.jpg
That said, solitary confinement over long periods of time is definitely torture. There's a stronger psychological component to this form of torture, and it often causes irreparable psychological damage as has been the case for several individuals who were subject to solitary confinement.
The effect is to deteriorate the mind. If people end up having panic attacks afterwards clearly it has caused them damage.
Whether it's widely held by the masses to be torture is of no importance because they have just as little knowledge as yourself.
Educate yourself in what psychiatrists, the United Nations, and Human Rights groups have been saying for a long time before stepping forth onto your soap box to call this "absurd."
how can he be sure that there isn't other legal theory secretly approved by secret court that would allow to subject him to simulated death (or something even more devilish) without leaving any evidence on his body? After all Snowden had security clearance, had friends in these agencies, heard stories, so he do knows better what is waiting for him...
>(it is impossible to consider him an enemy combatant)
why? isn't it is just an at-will designation by the executive branch without any roots in domestic or international law? And even if not enemy combatant, "enemy of the US" or "enemy of freedom" would work fine as well and would qualify him for "enhanced interrogation techniques 2.0 freedom deluxe edition" (nice movie "Dictator" btw)
Perhaps surprisingly, but no it's not. https://en.wikipedia.org/wiki/Enemy_combatant
The "enemy combatant" as it is used in the US means people in the US custody who is outside of the US jurisdiction and have at the will of the executive branch been denied Geneva convention (which covers _everybody_, not just uniformed combatants - everybody else is also entitled to protected POW status until put into domestic justice system of the country possessing the custody)
Such "enemy combatant" notion don't have basis in the US law as well as in international law.
"...an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."
Likewise, from the very same two paragraphs you reference you would find that the Bush-definition of enemy combatant describes an "unlawful combatant" who has no right to POW status under Geneva or the LOAC.
That doesn't mean that such civilian combatants have no rights whatsoever, but they are far limited compared to what Geneva provides for uniformed forces, and there is indeed precedent in international (and U.S.) law. For instance, Hamdi v. Rumsfeld was argued to the U.S. Supreme Court in 2004, which ruled (among other things) "... repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.". Congress tried to clarify in 2006 with the "Military Commissions Act of 2006" which does indeed contain a definition of an unlawful enemy combatant (one not reliant solely on the will of the executive). Likewise, several Supreme Court rulings have further eroded the position taken by Bush regarding the legal rights afforded to unlawful combatants held in Gitmo and other places.
And going back to the subject here (of whether the executive can unilaterally declare Snowden to be an 'enemy combatant' and send him to Gitmo): "On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days." (Padilla was a U.S. citizen arrested on U.S. soil).
But, that case ended up being thrown out on a technicality. When it was re-argued in the right court, they "ordered the Bush administration to either charge Padilla or release him.". They relied for that ruling on the Supreme Court ruling I'd just mentioned.
So no, Snowden should be perfectly safe from treatment as any kind of weird unlawful combatant should he return. In fact the term 'enemy combatant' was dropped in 2009 coincident to a certain regime change in the U.S.
no. Under Geneva, "unlawful combatants", like everybody else, are to be treated like protected POW until transferred to criminal or military justice system (lawful combatants are protected from such transfer). The "enemy combatant" status in the US is "unlawful combatant to whom both are intentionally and systematically denied - transfer to criminal or military justice system as well as POW status". That isn't "unlawful combatant" of Geneva, it is a violation of Geneva.
>they "ordered the Bush administration to either charge Padilla or release him.".
exactly.
> In fact the term 'enemy combatant' was dropped in 2009 coincident to a certain regime change in the U.S.
words change. People are still being held in Gitmo in violation of Geneva.
Because there is no such "secret court?" As a civilian Snowden cannot be tried in a military tribunal, and the only "secret court" that exists is FISC which is only empowered to grant warrants.
As a practical matter, people a lot more disliked by the state than Edward Snowden get tried in regular U.S. District Courts.
agree, secret court is too much. A confidential interpretation by a government lawyer would be enough as always.
>There is no reason to believe that someone who goes through the Federal civilian criminal justice system will be inevitably subject to torture.
They do track statistics for this by the way, if you know where to look.
For that reason once the trial judge determined that Manning should not have been held under Prevention of Injury Status after the psychiatrist deemed that he was not actually a suicide risk, she ended up reducing whatever his eventual sentence happens to be due to the fault of the military in that case.
Mind, he's still kind of stupid for 'joking' about killing himself with his soldier/Marine guards (who are not trained psychiatrists and are therefore trained to take no chances).
But even Manning being in the military wouldn't completely excuse his treatment in his first stages of pre-trial confinement.
Screw irony. It seems people stop thinking when they find irony in a situation.
Does Snowden have better options? No. So he has no choice but accepting asylum in a non-free country, no matter how ironic it might result.