Comment by themeek | Hacker News Reader

Comment by themeek | Hacker News Reader

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The state doesn't think it did anything wrong. All the way up to the president - and don't think the president wasn't aware of these operations - our representatives believe that these capabilities are necessary for the current and future security of the United States (which is, in fact, facing gigantic national security challenges).

The state does not want to give up these programs and it does not think that they are wrong.

Some members of Congress may think otherwise and some lawyers may think so as well. But the top brass even in the DOJ are mostly on board with these programs.

The most the state is willing to do is let Clapper 'retire' from service out of his official capacity and into a role where he can partner with the US government from the private sector and install a new general in his place.

As for Snowden, are there not mechanisms in our court system whereby lenience is given to those in special circumstances - whistleblowing laws being one of them?

I agree 100% that Snowden should face the music. But he doesn't believe he will get a fair trial in the United States and this is likely the case. So he's asking for amnesty.

I think that Snowden should continue asking countries for amnesty until it is clear that the legal circumstance in the United States and the conditions and location of the court he will be charged with (Virginia? Really?) will be a fair one. Mostly this means stronger whistleblower protection laws of the sort the Obama Administration promised but never delivered.

What about the trial do you think would be unfair? You can read the indictment here http://apps.washingtonpost.com/g/documents/world/us-vs-edwar...

In the history of Espionage Act cases - the Espionage Act being a wartime temporary restriction of normal constitutional proceedings that survived past its wartime statute - excludes the possibility of arguing a whistleblower case, which is what Snowden would want in this case to argue.

It's important to note that Snowden did not disclose these documents - he brought them to journalists, who then worked with the USG to coordinate what could be published to the public.

Historical analogies, such as the huge civil rights win in Ellsberg's Times vs. The United States sets a precedence that is not going to stick with Snowden. Ellsberg could not escape the Espionage Act charge but it was dropped by minstrel. This is not going to be a repeat with Snowden - they are going after him with the Espionage Act because they know that it specifically excludes the defense that the leaks were performed in the public interest.

History of National Security laws show how opaque the presumed-to-be transparent process of the court are supposed to be. Take for example the Lavabit case, done without a jury with a secret court summons and with evidence that the state promised the judge was there but could not provide to the defense or public for inspection because... national security. All done with only one or two weeks notice and a gag order that made it nearly impossible to find legal representation.

This was for Snowden's email provider.

Finally, the Virginia court circuit is one filled with lawyers not known for their expertise or lenience in civil rights matters but one with lawyers known for their favoritism of national security.

But overall we've got what we need from Snowden and I don't care so very much for me what he does. When I say he shouldn't come home it's prescriptive advice: meaning I would recommend to him - if I were him - that he find amnesty because of the facts listed above.

Regardless of how long ago the law was passed, it intuitively makes sense that it's illegal to publicly disclose national security secrets.

This talk of the history of the Espionage Act feels like a lot of hand waving. You make it sound like the government cherrypicked and misapplied some old law in order to stymie Snowden's defense. I don't believe there ever was (nor ever will be) a scenario where leaking national security documents to the press is protected as whistleblowing. This is not specific to the Espionage Act, I don't think "yes I did it, but it was for the greater good of society" is typically a valid defense argument in any criminal case.

(And it's offtopic but I disagree with your characterization of the Lavabit case. Lavabit wasn't on trial; they were served with a valid wiretap order that was signed by a regular non-secret non-FISA court judge and based on reasonable evidence. That's how it's supposed to work. I wish all national security cases were pursued that way.)

Please see the reference to Ellsberg and the Pentagon Papers and the associated Supreme Court case where document leaking was protected by whistleblowing. You can also look at the COINTELPRO leaks.

The Espionage Act has been used a total of 8 times, multiple times during the Obama Administration.

(You can disagree but Lavabit had suite that it effectively was not allowed to bring. This is point I made above - Lavabit was trying to mount a legal defense against the destruction of its business in this case; it was not able to.)

The Supreme Court case you refer to was called "New York Times vs US Government" and was a major victory against prior restraint of the press, but it didn't protect Ellsberg.

But I feel we've lost the point. Snowden can't argue that his actions were legal or warranted by the Constitution while he's a fugitive.

This characterization of the Ellsberg case misses its entire context. I'm not sure if you did that purposefully, but perhaps you think there are other reasons why he was acquitted.

I do agree we are off point. Snowden can't argue that his actions were legal or warranted by the Constitution while he's a fugitive. He also can't if he isn't given a fair trial: https://news.ycombinator.com/item?id=9656310

But Eli, we agree. I too am insanely curious to see how this would be handled in court. I don't really have too strong opinions about Snowden himself - mostly I am concerned about the precedent the court case would set up and what it would communicate to other whistleblowers.

What sort of outcome do you want here? Would you like, as a result of the court case:

(A) A precedent whereby whistleblowers who share documents with the press that implicate the government in a scandal widely and bipartisanly disapproved of by the vast majority of American people are forgiven for their crimes on account of public good but where foreign spies who share documents with enemy intelligence can be charged

(B) A precedent whereby whistleblowers who share documents with the press that implicate the government in a scandal widely and bipartisanly disapproved of by the vast majority of American people are treated like foreign spies who share documents with enemy intelligence

[Or maybe you want some other precedent?]

I'm squarely in camp (A). Since law is a man made object, I say we get to making it possible for the legal landscape to allow the first precedent to be possible right away.

This describes the crucible of the Snowden situation perfectly. Very well put. I am also in camp A.

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