Dear Mr. Holder: Why Ed Snowden can’t get a Fair Trial in your National Security State

By Juan Cole | (Informed Comment) | – –

Former US Attorney General Eric Holder said in an interview that what NSA whistle blower Edward Snowden did was illegal but added “”We can certainly argue about the way in which Snowden did what he did, but I think that he actually performed a public service by raising the debate we engaged in and by the changes that we made . . .”

But nobody in the Obama administration still in office ever said that Snowden did a public service. He certainly did, since the NSA and other intelligence organizations had gone rogue. In essence, they unilaterally abrogated the Fourth Amendment of the US Constitution. PBS Frontline alleged that the NSA did not even read Obama into their warrantless surveillance of millions of Americans until 2010! In a system like that, the president isn’t really the president– the Deep State does as it pleases.

It is also clear that the NSA has been sharing metadata with local law enforcement, which has been using it to build cases against people without ever seeking a warrant, and then lying to judges about how they knew someone was, e.g., in touch with a drug dealer by phone. In other words, NSA surveillance has corrupted the entire justice system of the United States and made the Fourth Amendment a dead letter.

Such sharing of illicitly-gathered private information among US government agencies is becoming routine. (These cases have nothing to do with terrorism.)

So Holder’s sudden appreciation of Snowden is hypocritical. He went on to say,

“He’s broken the law. In my view, he needs to get lawyers, come on back and decide what he wants to do — go to trial, try to cut a deal . . . But in deciding what an appropriate sentence should be, a judge could take into account the usefulness of having that national debate . . .”

Mr. Holder is a man of the US justice system and knows exactly how it functions, so he knows very well that Snowden will not be allowed to present a whistle blower defense if he is tried in the US and that no judge will be allowed to take his public service into account.

So Holder is lying. The only question is why. Is this an attempt to go on justifying the Obama administration’s despicable war on whistle blowers? Or does Holder think Snowden will be so stupid as to be enticed back with a few false promises?

Here is a revised version of what I wrote on this issue when other Obama administration officials made similar dishonest statements, substituting Holder:

[ Revised and expanded]

Holder is either amazingly ignorant or being disingenuous when he suggests that Snowden would be allowed to “make his case” if he returned to the US. No one outside the penal justice system would ever see him again, the moment he set foot here, assuming he was not given a prior deal. He could maybe try to explain himself to the prison guards, assuming they didn’t stick him in solitary. Here are some reasons Mr. Snowden would be unwise to trust himself to that system, given the charges against him:

1. The United Nations Special Rapporteur found that the US was guilty of cruel and inhuman treatment of Chelsea (Bradley) Manning, who was responsible for the Wikileaks and revelations of US killing of unarmed journalists in Iraq. Manning was kept in solitary confinement and isolated 23 hours a day for months on end, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture, on the trumped up pretext that he was suicidal (his psychiatrist disagreed).

2. The Espionage Act under which Snowden would likely be tried is a fascist law from the time when President Woodrow Wilson (like Obama a scholar of the constitution) was trying to take the US into the war, and was used to repeal the First Amendment right of Americans to protest this action. It was used to arbitrarily imprison thousands and is full of unconstitutional provisions. In recent decades the act was used against whistleblowers only three times, but Barack Obama loves it to death. It is an embarrassment that it is still on the books and it reflects extremely badly on Obama and on Eric Holder that they revived it as a tool against whistle blowing (which is most often a public service).

3. John Kiriakou, who revealed CIA torture under Bush-Cheney, was prevented by the Espionage Act from addressing the jury to explain the intentions behind his actions and therefore forced into a plea bargain. None of the CIA officers who perpetrated the torture or their superiors, who ordered it, have been punished, but Kiriakou went to prison and and his family suffered because of the lack of income. The US public deserved to know about the torture rather than having Obama bury it the way he has buried so many other things wrong with the system.

4. National security officials such as Snowden are not covered by protections for whistleblowers in the Federal government, as Thomas Drake discovered. Drake helped bring to public attention the National Security Agency abuses that Snowden eventually made more transparent. But he was forced to plea bargain to a charge of misusing government computers. He lost his career and his retirement, for trying to let us know that when faced with a choice between a surveillance system that was indiscriminate and one that was targeted, the US government went indiscriminate. Indiscriminate is unconstitutional.

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5. Not only did the US torture Manning, US officials have on many occasions practiced arbitrary arrest and imprisonment and torture. Most often these policies have been enacted abroad, as at Abu Ghraib, Bagram, Guantanamo, and black sites in countries such as Poland. But arbitrary arrest, trigger-happy killings, and extended solitary confinement are all practiced domestically as well, on America’s vast gulag of 2.4 million prisoners, 4/5s of them black or brown. A fourth of all the prisoners in jail in the entire world of 7 billion people are in the United States. At any one time 80,000 US prisoners are in 23-hour-a-day solitary confinement. Abu Ghraib wasn’t a low-level military excess. It was simply the transposition to Iraq of the ideals of an incarcerating society, dedicated to disciplining and interrogating those who fall into the system’s hands. You don’t get these outcomes– a fourth of the world’s prisoners and a small city worth people in solitary confinement– by accident. These abuses are systemic, and worsened by the privatization of prisons. Eric Holder’s notion that there is a fair trial to be had for Snowden in this cruelly flawed system is bizarre.

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Holder is a bright and informed man and knows all this. I vote for disingenuous. He is just trying to deflect Snowden’s obvious popularity with the public and is trying imply that Snowden’s revelations put the issue behind us. They haven’t.

Related video :

Newsy: “Eric Holder Gives Snowden Props For Performing A ‘Public Service'”

17 Responses

  1. So Holder is lying. The only question is why.

    While it is laudable to hold politicians to their word, it would seem that doing so quickly degenerates into a full time job as even a cursory look reveals that they lie habitually.

    In this particular case, it seems that Holder is staying on message, sticking to the tested talking point: “Snowden is palling around with unsavory characters: Hong Kong/China, Russia, Cuba, Venezuela. Therefore he is either a traitor or at best a hapless instrument of an enemy power”.

    Of course the countries in the list happen to be those they can’t just order to illegally ground the plane they think he’s on; but this insight already requires a basic understanding that whistle-blowers aren’t safe within the reach of the U.S. which is precisely to point of contention.

    In their portrayal, Snowden’s “public service” consists of merely having forced them to embark a little earlier on their professional discussion about NSA powers which was of course was already scheduled for later that year, anyway.

    Like the Iraqi defense minister who proclaimed great victories while enemy tanks were visibly rolling in on the very location of his interview, bureaucrats tend to tell such stories to themselves and anyone who would listen.

    What do you expect Holder to do? Isn’t he nominally in charge of prosecuting government officials who misuse their power? He’s certainly not going to admit any wrongdoing on the part of the security state thus implicating himself for dereliction of duty or gross negligence…

  2. Obama has been a huge disappointment in so many ways — This is just one of those situations — I fear that Hillary would be worse, if that’s possible.

  3. “In a system like that, the president isn’t really the president– the Deep State does as it pleases.”
    Dah…, it has been that way for decades: The president is a dressed up viceroy appointed and closely supervised by the head of the Deep State.

  4. Dr. Cole,

    You said, “Mr. Holder is a man of the US justice system and knows exactly how it functions, so he knows very well that Holden will not be allowed to present a whistle blower defense if he is tried in the US and that no judge will be allowed to take his public service into account.”

    I believe you meant to say this:

    “Mr. Holder is a man of the US justice system and knows exactly how it functions, so he knows very well that Snowden will not be allowed to present a whistle blower defense if he is tried in the US and that no judge will be allowed to take his public service into account.”

  5. Holder reminds me of the Big Bad Wolf from the fairy tale Little Red Riding Hood who would like to get Snowden to return to the US (Grandma’s house) so he might be eaten by the (Big Bad Wolf) justice department. Snowden is no fool. He knows Fox and CNN would go into full “Snowden is a traitor mode” with no dissension allowed.

  6. Very interesting article. I may soon use the Espionage Act to prosecute several of the US judiciary in the Court of Federal Claims, for infiltrating the US government with the intent of subversion, for that is the truth of the matter. Should make them think about it if they are capable.

  7. Disingenuous says it well.
    A system of laws built on
    lies incarcerates the whole system to change. The road blocks have been built. Neither Hillary or the Donald will have a hard time of keeping their sheep in order. And certainly their politics will dictate no change to keep their lock up in place.

  8. 1. The United Nations Special Rapporteur found that the US was guilty of cruel and inhuman treatment of Chelsea (Bradley) Manning, who was responsible for the Wikileaks and revelations of US killing of unarmed journalists in Iraq. Manning was kept in solitary confinement and isolated 23 hours a day for months on end, was kept naked and chained to a bed, and was subjected to sleep deprivation techniques, all three well known forms of torture, on the trumped up pretext that he was suicidal (his psychiatrist disagreed).

    And President Obama considered this treatment “appropriate” despite claiming torture would not be allowed in the United States.

  9. The seasons change, the winds they shift and veer;
    The grass of yesteryear
    Is dead; the birds depart, the groves decay:
    Empires dissolve and peoples disappear;
    Song passes not away.
    Captains and conquerors leave a little dust,
    And kings a dubious legend of their reign;
    The swords of Caesars, they are less than rust:
    The poet doth remain.
    Sir William Walton; “Lachrimae Musarum”

    I have often wondered why, in our public schools, we still continue to teach that we have this wonderful political system – when it is so corrupt.

    Should we not teach our students just how corrupt it is? Would they not be then better prepared for the “real world?”

    If a corrupt politician came into a public school classroom, and the teacher would get out of the way while the students asked the politician questions, the students would soon strip the politician so naked that he or she would quickly leave.

    “Public servant”, indeed.

    Politics is not something you “do.”

    It is a lifestyle.

    And should we not add Sibil Edmonds to the list of whistle blowers.

  10. The current “new and improved” National Security State came into being about a decade ago. Born out of FUD (fear, uncertainty and doubt), those of evil intent in their time made it possible to criminalize privacy, diminish average citizens in the eyes of the law and to legitimatize an elite class of citizens to be above all. This same evil intent laid the groundwork for the power of our National Police State to be subsequently misused and abused by those who follow.

    We haven’t seen anything, yet.

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