Prosecuting Snowden

I generally don't like stories about Snowden as a person, because they distract from the real story of the NSA surveillance programs, but this article on the costs and benefits of the US government prosecuting Edward Snowden is worth reading.

Additional concerns relate to the trial. Snowden would no doubt obtain high-powered lawyers. Protesters would ring the courthouse. Journalists would camp out inside. As proceedings dragged on for months, the spotlight would remain on the N.S.A.’s spying and the administration’s pursuit of leakers. Instead of fading into obscurity, the Snowden affair would continue to grab headlines, and thus to undermine the White House’s ability to shape political discourse.

A trial could turn out to be much more than a distraction: It could be a focal point for domestic and international outrage. From the executive branch’s institutional perspective, the greatest danger posed by the Snowden case is not to any particular program. It is to the credibility of the secrecy system, and at one remove the ideal of our government as a force for good.

[...]

More broadly, Snowden’s case may clash with certain foreign policy goals. The United States often wants other countries’ dissidents to be able to find refuge abroad; this is a longstanding plank of its human rights agenda. The United States also wants illiberal regimes to tolerate online expression that challenges their authority; this is the core of its developing Internet freedom agenda.

Snowden’s prosecution may limit our soft power to lead and persuade in these areas. Of course, U.S. officials could emphasize that Snowden is different, that he’s not a courageous activist but a reckless criminal. But that is what the repressive governments say about their prisoners, too.

EDITED TO ADD (7/22): Related is this article on whether Snowden can manage to avoid arrest. Here's the ending:

Speaking of movies, near the end of the hit film "Catch Me If You Can," there's a scene that Snowden might do well to watch while he's killing time in the airport lounge (or wherever he is) pondering his fate. The young forger, Frank Abagnale, who has been staying a step ahead of the feds, finally grows irritated and fatigued. Not because they are particularly skilled in their hunting, nor because they are getting closer, but simply because they won't give up. In a fit of pique, he blurts into the phone, "Stop chasing me!" On the other end, the dogged, bureaucratic Treasury agent, Carl Hanratty, answers, "I can't stop. It's my job."

Ultimately, this is why many people who have been involved in such matters believe Snowden will be caught. Because no matter how much he may love sticking it to the U.S. government and waving the banner of truth, justice, and freedom of speech, that mission will prove largely unsustainable without serious fundraisers, organizers and dedicated allies working on his behalf for a long time.

They'll have to make Edward Snowden their living, because those who are chasing him already have. Government agents will be paid every minute of every day for as long as it takes. Seasons may change and years may pass, but the odds say that one morning, he'll look out of a window, go for a walk or stop for a cup of coffee, and the trap will spring shut. It will be almost like a movie.

Posted on July 22, 2013 at 1:04 PM • 32 Comments

Comments

LisaJuly 22, 2013 2:21 PM

Lets face it, whistle blowers are treated worse than murders these days by the justice department.

In the USA, Bradley Manning, who was cruelly and inhumanly tortured for an extended period of time, is now suffering from permanent brain damage. (Yes, non physical torture, especially sleep deprivation solitary confinement does cause brain damage, since a human can last longer without food than without sleep.)

http://www.wired.com/threatlevel/2012/03/manning-treatment-inhuman/

Although many government officials consider torture to be an effective deterrent, this has changed the equation for Snowden, and likely motivate him to flee the USA. It is no longer a question of spending time in jail for ones beliefs and/or actions, but being tortured and permanently brain damaged.

In such as case, it does not make sense for Snowden to return to the USA ever, while torture remains a risk. And if he was forced to return to the USA, he would be better off taking an overdose of sleeping pills.

Snowden's only hope would be find a safe country and start a business that could make him rich. Then he could hire enough lobbyists and make enough political contributions to allow him to get a pardon.

Hey, it worked for Wall Street bankers, and lets not forget Marc Rich who was pardoned by Clinton while hiding in Switzerland for one of the biggest tax fraud in history!

LisaJuly 22, 2013 3:35 PM

Lets face it, whistle blowers are treated worse than murders these days by the justice department.

In the USA, Bradley Manning, who was cruelly and inhumanly tortured for an extended period of time, is now suffering from permanent brain damage. (Yes, non physical torture, especially sleep deprivation solitary confinement does cause brain damage, since a human can last longer without food than without sleep.)

http://www.wired.com/threatlevel/2012/03/manning-treatment-inhuman/

Although many government officials consider torture to be an effective deterrent, this has changed the equation for Snowden, and likely motivate him to flee the USA. It is no longer a question of spending time in jail for ones beliefs and/or actions, but being tortured and permanently brain damaged.

In such as case, it does not make sense for Snowden to return to the USA ever, while torture remains a risk. And if he was forced to return to the USA, he would be better off taking an overdose of sleeping pills.

Snowden's only hope would be find a safe country and start a business that could make him rich. Then he could hire enough lobbyists and make enough political contributions to allow him to get a pardon.

Hey, it worked for Wall Street bankers, and lets not forget Marc Rich who was pardoned by Clinton while hiding in Switzerland for one of the biggest tax fraud in history!

Jon ZieglerJuly 22, 2013 3:46 PM

Reminiscent of Major Strasser's reasoning in Casablanca, regarding the resistance leader Victor Laszlo. He says to Captain Renault:
I have been thinking. It is too dangerous if we let him go. It may be too dangerous if we let him stay.

It's hard to see Snowden in anything but a sympathetic light, in flight after flouting the laws of a tyrant. But does he have Bogart and Bergman to support his cause? Will he get the letters of transit? Any way you look at it, it makes for great drama.

Meanwhile, Ubiquitous Surveillance lurks in the background....

Nicholas WeaverJuly 22, 2013 3:52 PM

Two things not addressed:

In the first article, we've already burned a huge amount of political capital. Having our allies intercept the flight of a foreign head of state based on rumors that Snowden was aboard has ensured that basically all of central and south America is mad at us for being a ridiculous bully.

The second is that the treatment of Manning has been well heard by Snowden: Snowden knows that the US government will not settle for anything less than throwing him in a solitary hole for the rest of his life, stripped to his underwear on "suicide watch".

Manning was so willing to take responsibility that he plead guilty to charges which are enough to keep him locked up for two decades. Yet this still wasn't enough for the US government, who've now asserted that "if al Quaeda reads things that is aiding the enemy".

It may be in the United State's strategic interest to let Snowden go into exile, or a plea bargain. But it seems almost certain that neither of those will happen.

GweihirJuly 22, 2013 4:27 PM

Defending freedom requires the occasional sacrifice of good men and women. Snowden is one of them. Unfortunately, it seems likely his sacrifice comes far too late. Those in constant fear of free people seem to have managed to get into a position to remove essential freedoms for a long, long time.

SimonJuly 22, 2013 4:43 PM

There is a line Snowden must not cross and he knows it, too. That's why he sometimes minces words. If he unleashes everything they will pull out all stops. Period.

Duncan KinderJuly 22, 2013 4:53 PM

Oh please, the reference to Les Misérables is too obvious here.

But you're really trying to relate Snowden to Stalin's pursuit of Trotsky.

Which isn't a good analogy because I am sure that there are lots of fellows the former Soviet Union was out to get who were simply forgotten following its collapse.

And you are assuming that the United States today is more durable than the Soviet Union. Which is questionable - for no stable, sound secure government would be having the hissy fit over Snowden such as the the United States now is.

SimonJuly 22, 2013 5:09 PM

What if you get everything you want, what if you get everything you think you deserve, but then the World blows up? Do you still want it???

The chances of bad things happening isn't as bad as many fear? Yeah, I read that umpteen times in essays like The Psychology of Security. But other studies show we suffer from an optimism bias. It was even touched on in an episode of Through the Wormhole. Maybe it'll be worse than you expect, and maybe you're just another contrarian journalist.

Do you really know that it won't be so bad if all the secrets are spilled, that the Federal Gov't is characteristically bad BECAUSE they have secrets?? That's what a scary number of nut jobs are saying. What if you get what you want, but then the World blows up?

What does he mean "cut their losses?" Does he even know what he means?

FigureitoutJuly 22, 2013 7:10 PM

Abagnale and Hanratty also develop this freaky weird back-and-forth relationship where the enemies eventually look out for one another and become friends. Eventually all Abagnale wants is his parents to get back together, a girl he can trust and love and a somewhat normal life w/ no more running/hiding. A hopeless romantic. He still stole a lot of money though too so I wouldn't look up to him and try to emulate that behavior.

Nothing like Snowden's situation, who likely lost his girlfriend forever, which is a future of pure isolation/death. I hope whatever information he has was really worth it, and like Simon says (not the game damnit lol) cause pure chaos and destruction.

Dirk PraetJuly 22, 2013 7:21 PM

With all respect for the author, but I think we have a textbook example of wishful thinking here. This is how things might have played out in the seventies (remember Daniel Ellsberg), but I'm betting every cent I've got that when Snowden gets caught, he is going to suffer the exact same treatment as Bradley Manning, and it's all going to be perfectly legal. Anybody thinking anything else needs a serious reality check.

It's a sad to say, but from what I am seeing the US no longer has a credible justice system or a functional democracy. Even former president Jimmy Carter apparently sees it that way ( http://www.salon.com/2013/07/18/jimmy_carter_us_has_no_functioning_democracy_partner/ )

Paco JaviJuly 22, 2013 7:49 PM

@Simon

Given the recent decision in the Manning case, the zeal with which the Obama administration wants to pursue Snowden, , the existing precedents of targeted assassinations of US citizens declared to be enemy combatants and the downsides of a real trial, it wouldn't surprise me at all if he were declared an enemy combatant. What the US next step would be however is unclear. Once he's on US soil, which would presumably happen if he were extradited to the US, reshipment to Guantanamo I think would be illegal. Droning out Snowden in Venezuela or (Bolivia, Argentina ) however is unthinkable. Nicaragua maybe.

In any case this administration has lost all credibility with me at least.

Coyne TibbetsJuly 22, 2013 8:50 PM

It's not cost effective to prosecute him; and it's less so to assassinate him (martyr effect).

Nevertheless, they must destroy his life, and do it publicly, as a deterrence to other whistleblowers. They will pay the price, no matter how high.

Which is why effective whistleblower protection is so important.

GeorgeJuly 22, 2013 9:10 PM

Since an NSA-trained hacker living in a foreign country is undeniably a threat to national security, the obvious solution would be for Obama to (secretly) declare Snowden an Enemy Combatant and (secretly) disappear him into Cheney's (secret) gulag that surely must still exist (in secret). After Snowden has been sufficiently (secretly) broken by (secret) solitary confinement in a (secret) detention facility, he may be offered the opportunity to partially redeem himself from his unpardonable offenses by (secretly) volunteering to serve as a subject on whom (secret) outsourced contractors (who believe that waterboarding is far too kind a treatment for a traitor like Snowden) can practice (secret) Enhanced Interrogation techniques.

All of this, of course, is fully legal. It will be under the authority and oversight of whichever FISA court judge happened to be wielding the rubber-stamp on the day he's presented with a classified request for a classified ruling that authorizes the President or his authorized designee to mete out vengeance to anyone he, at his sole discretion, deemes a threat to national security.

Obama, in his obsession with deterring leaks, would of course take full advantage of the opportunity this disposition provides. He would make a triumphant speech putting us all on notice that anyone who even thinks of leaking classified information will not merely spend the rest of their life in Supermax, but will be stripped of their citizenship and of any rights under any laws of any jurisdiction. And if that announcement has a wide-ranging chilling effect that goes far beyond leakers, that can only be a highly desirable effect.

"9/11 Changed Everything." The terrorist Enemy is waging jihad because they hate our freedom. And the only way to keep the Homeland secure is to preemptively remove the Enemy's target.

charlieJuly 22, 2013 9:50 PM

Gitmo? Drone strike. I can't think of a single person more deserving of the "Enemy combatant" label. Snowden is the very easy case.

The attached article was pretty useless in terms of the law. The only issue is would Snowden's legal defense be able to expose more secrets. A carefully delinated charge would elimate that.

Michael MoserJuly 22, 2013 10:16 PM

Well, if he gets a trial in a secret court then he will not get any publicity.
Its hard to get used to such a mode of thinking, but the reaction of the state is determined by the threat level perceived by the state. fair play in such matters might be a thing of the past.

Nick PJuly 22, 2013 10:40 PM

@ Bruce Schneier

Good choice of quote in the 2nd article. It resonated with me too. Another in that article I liked was:

"And there is this: He's made no secret of what he did or why. He has effectively confessed to everything. That makes it harder for any harboring nation to plead ignorance of the facts or accept that this is all purely political. Saying he did it to defend an important constitutional principle has won great admiration from some quarters, but it will probably hold about as much weight in court as the arguments of tax dodgers who insist that the 16th Amendment was never ratified."

Shows the importance of deniability. I've posted on this blog tech to support that goal. More important are how one presents the information to the public and the image one maintains. Snowden traded heroic press stories for the deniability upon which he might have made a superior, defensive strategy. I hope the next whistleblower plays the end game more carefully so we can see how effective these alternate strategies are in practice.

Note: Deniability has worked for many opponents of FBI and DOD over the decades outside the realm of spilling classified information. So, legal support of deniable leaking is partial at best.

FigureitoutJuly 22, 2013 10:47 PM

Nick P
--One cannot really make these judgments w/o sometime really testing the waters first. But, I do kind of wonder why he decided to come out at this particular time and not wait a little more; maybe just a human impulse he couldn't suppress.

NargunomicsJuly 22, 2013 11:34 PM

@Nicholas Weaver

Good points. In the meantime, the US Federal government has shown itself willing to aid and abet those who would accuse it of committing crimes against humanity in this pursuit of whistleblowers, thus aiding and abetting those with a significant grudge against the US to commit acts of terror against it, thus by its very own definitions the United States Federal Government is treasonous.

Peter AnderssonJuly 23, 2013 1:51 AM

Once upon a time there was a president in the US who said:

The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it...

I guess the times they are a changing, so to speak.

http://www.techdirt.com/articles/20101206/01134912143/jfk-secrecy-censorship.shtml

Shachar ShemeshJuly 23, 2013 10:22 AM

Ken white, over at "popehat" legal blog, had a review of the charged against Snowden, as well as what the prosecution needs to prove in order to get a conviction. Assuming fair trial (yeah, yeah, I know...), this seems really tough to do.

There is one charge (embezzlement) that seems to me to be completely bogus, and two more that hing on Snowden "causing harm to the USA". Note - not the NSA, not the administration - the country. Snowden can bring up the validity of the secrecy, and, indeed, of the actual program, without this being off topic or a distraction. It is germane to what the state has to prove in order to secure a conviction.

To me, that means that no one at the prosecution thinks he is likely to get a fair trial.

Shachar

Clive RobinsonJuly 23, 2013 3:56 PM

@ Martin Schroder,

    Is there a statute of limitations...

First you need to know what his crimes are, and that appears a little uncertain at present.

In many juresdictions "treason" is the last of the capital crimes, and thus you will find some people as with Bradly Manning, demanding mob rule style for a "hanging party".

However from what I've seen Ed Snowden has not yet told us anything that was not already known, calculated or suspected. Thus all he has done upto now is the puting what is in effect a "rubber stamp" on it, that has turned reasonable suspicion in a few minds into incriminating evidence for many US (and WASP nation) citizens.

In effect no secret has been released just confirmation and the attendant emmbaresment from having administrative hypocrisy made public, is this treason? Personaly I think not, but then I'm not Barack "the control freak" Obama and I've not had my image and that of my administration trashed publicaly, whilst also being made to look impotent.

And as has been observed for eons "Hell hath no fury like a woman scorned" well I'm guessing that old saw is going to get an update unless people think the current POTUS is going to behave like a "Waspish old woman" indefinatly...

I guess what is worrying Barack "the control freak" Obama is that history will remember him for being like Nixon for bringing the position of President of the USA into one of disrespect for being "The President who turned the US into a Police State" thus in effect eclipsing any of GWB's failings...

SchauerJuly 23, 2013 9:20 PM

As for the second essay, I think that Snowden realizes that if the direction of the US govt isn't changed dramatically by these revelations, it won't matter what happens to him - because the planet will soon not be worth living on anymore. Just look at how quickly things have gone bad since 911. And how bad: Even a former US President AND a former NSA chief could no longer keep quiet.

eWilliamsJuly 23, 2013 10:21 PM

Catch Me If You Can might not be the right movie. I think it's more like Zero Dark Thirty. The 9/11 attacks brought a lot of shame on US intelligence, the whole "connect the dots" whine. That made them angry. The tiny Alec Station cell that was tracking Osama bin Laden was told "we want this guy, dead or alive". With unlimited resources, unlimited patience, and the internal "we should have known" motivation; ObL never had a chance. The Pakistani government provided him a safe haven and he practiced some really careful tradecraft; all it bought him was time. Then again, maybe the movie is Tora Tora Tora. Snowden has waked a sleeping giant, and that movie plot never turns out with a grey-haired hero and a beach sunset.

everyday.guyJuly 24, 2013 6:43 AM


The difference between Snowden and a criminal on the run is that, by the standards of the laws foremost of the country he is running from he is not a criminal.

How, exactly, is Iraq or Afganistan threatening the freedom of the US?

That is not why the US is in these countries.

The founding documents do not speak of the threat of loss of freedom from outside nations, rather, they speak of the threat of loss of freedom from corruption in the very government they founded. This documents are the founding laws and core standard of the US State today. By this standard, and by every standard of reasonable conscience, Snowden is no criminal, but rather a man of liberty.

And he is a man who upheld the standards and spirit of the laws of the United States, when all of his coworkers with the same knowledge betrayed those standards and betrayed that spirit.

Can it be that a nation might do wrong? Have nations ever done wrong before? There is even a major world religion founded by a man who was convicted by multiple states, including his own, for the death penalty, which he did receive. Of that religion, there are many who were on the run from the State, and several who were never caught: for instance, David and Elijah.

Across the world there have been many who have stood up against their nation's corruption and been forced to go into asylum or the run and they were never murdered nor kidnapped.

I see the author of that document thinking in the very short term (unless he is hoping for a future totalitarian superpower future), and is not thinking of this case in moral terms, nor in terms of conscience.

There are a lot of people who will sing the song that the US corruption is good, though it clearly is not. Many of them work in the State and others have customers of the State. Some are probably simply scared of the State. Maybe there are a few idealists left who believe "all is well", but these are few and far between.

IncunabulumJuly 24, 2013 8:00 AM

"It will happen this way. You may be walking. Maybe the first sunny day of the spring. And a car will slow beside you, and a door will open, and someone you know, maybe even trust, will get out of the car. And he will smile, a becoming smile. But he will leave open the door of the car and offer to give you a lift."

Three Days of the Condor

everyday.guyJuly 24, 2013 8:49 AM

@Incunabulum

Great movie. Like every great movie, you have a hero or heroine fighting a cause which is deeply righteous.

The appeal is obvious: everyone fights for causes large and small, and they like to imagine their causes, too, are righteous.

Only, they very often are not.

Snowden is blessed to have a truly righteous cause. He probably bothered to look for it.

Steven J FrommJuly 24, 2013 1:43 PM

Nice post. Never thought about the circus that will occur once he is caught. That will not be good.
And the Catch Me If You Can parallel is a good one; it is not if but when he gets caught.

everyday.guyJuly 24, 2013 8:34 PM

@eWilliams

Snowden is not comparable to Osama Bin Laden, and he is not comparable to the Japanese attack on Pearl Harbor.

OBL was not caught by any giant surveillance system. If anything, Zero Dark Thirty shows one woman with extremely minimal resources working against that giant to actually find OBL. What was everyone else doing?

Now we know.

Building this gigantic surveillance system has nothing to do with terrorism. It is in flagrant violation of even the Patriot Act. Much more importantly, it is in flagrant violation of the constitution.

I am not sure if you disagree - if anyone disagrees on this - they would have a hard time arguing for it on any open forum, that is for sure.

There is no way to police this kind of system. Open democracies can not survive when all of their politicians and people in power are wiretapped. Unless people know absolutely nothing about tyrannical states, they really have no excuse to say otherwise.

If you wish to surpass the surveillance state powers of a China, Saudi Arabia, even a North Korea -- you have done that with this system.

In one fell swoop, while none of the people had any say, the founding free nation of the free world has lost their freedom.

This the Japanese, the Nazis, the Soviets were never even remotely close to doing.

So, if you wish to compare attacks on freedom here in this scenario: the better villain is the people behind these things in the first place, and those who continue to carelessly advocate them.


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