Sen. Schumer Is Completely Wrong; Snowden Would Be Barred From Arguing His Case At Trial

from the you'd-think-congress-would-know-the-law dept

It seems every week a new member of Congress goes on a Sunday talk show and incorrectly states that if Edward Snowden came back to the United States to stand trial, he would be able to tell his side of the story to a jury and argue he is a whistleblower. This is factually not true, and it's time for members of the media to start pushing back at those who suggest it is.

This week it was Senator Chuck Schumer on ABC's "This Week." Here's what Schumer said, according to the New York Times:

Mr. Schumer said...[Snowden] should return to stand trial and face the consequences of his actions. Such a trial, the senator said, could be enlightening for the country.

...

He said it was unclear how much the broad metadata gleaned by the National Security Agency had helped the fight against terrorists; how much damage Mr. Snowden had, in fact, done to intelligence efforts; and precisely how the data were used.

“All of this could come out in a trial; it would be beneficial for the country to have the discussion,” Mr. Schumer said. “So, running away, being helped by Russia and China, is not in the tradition of a true civil disobedience practitioner.”

In reality, none of that information would be heard by a jury, if prior Espionage Act cases against leakers are any guide. Judges have ruled evidence of showing intent to inform the public, benefits of the leaks, and lack of damage to national security is inadmissible. We made this point just two weeks ago, but it seems worth repeating since it seems as though members of Congress opining on Snowden's legal options do not know how the law works. Here are how four of the most recent Espionage Act leak cases have turned out:

  • John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.
  • In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)
  • In the Espionage Act case against NSA whistleblower Thomas Drake (which later fell apart), the government filed two separate motions to make sure the words "whistleblowing" or "overclassification" would never be uttered at trial.
  • In Chelsea Manning's trial this past summer, Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

At this point, it's time for the media to start pushing back on government officials suggesting Snowden should tell his story to a jury, when caselaw says he would be barred from doing so. The New York Times is aware of this fact, as they mentioned it in another article published Sunday about the chances of Snowden receiving clemency. But in their story about Schumer's comments, they let his false statement go uncorrected.

It's also time for Congress to start debating the merits of using the Espionage Act on the sources of journalists. If Sen. Schumer thinks that Snowden should be able to tell all of the above information to a jury, we look forward to his amicus brief in a potential Snowden trial arguing that a whistleblower defense should be admissible. In the mean time, he and other members of Congress concerned about whistleblowers getting a fair trial should push for reform or repeal of the Espionage Act.

Republished from Freedom of the Press Foundation



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  1.  
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    That One Guy (profile), Jan 7th, 2014 @ 5:14am

    On the contrary...

    I'm pretty sure he does know that that sort of stuff would be inadmissible in a court, he's banking on the general public not knowing it.

    Makes for easy, risk free(or at least, risk free as long as the newspapers/reporters covering it are good little puppets and don't call him out on his lying), and good PR to make such 'generous' offers, even when he knows full well he's lying through his teeth making them.

    Also, let's just break this piece down and look over it piecemeal(with the NSA providing their unintentional comedic relief):

    'He said it was unclear how much the broad metadata gleaned by the National Security Agency had helped the fight against terrorists'

    NSA: '54 cases! I mean 2! I mean...'

    Yeah, the NSA has yet to show that their insanely broad spying was essential to catching any terrorists, and the one or two 'maybes' were also cases where regular, constitutional surveillance would have done just as well, so zero help there 'fighting the terrorists'.

    '...how much damage Mr. Snowden had, in fact, done to intelligence efforts'

    NSA: 'An utter disaster. I mean none at all. I mean it's been catastrophic. I mean...'

    Bit of a terminology problem here, there's legitimate 'intelligence efforts', involving spying on actual terrorists, and then there's the 'grab everything just in case it might be useful later' 'intelligence efforts', which is the NSA's preferred method of doing things.

    The first category, the 'damage' would be minimal at most, since any serious terrorist or terrorist group has known for years that electronic communications wasn't exactly secure, and have done everything they can to avoid using it. Spying on electronic communications doesn't do you much good if your target doesn't use those means to communicate after all.

    The second category though, the 'scoop everything up and sort it out later' form of spying, that Snowden's actions have put at risk, and rightly so, considering such insanely broad spying shouldn't have been going on in the first place.

    '...and precisely how the data were used.'

    NSA: 'Stopping terrorists attacks of course, certainly not listening in to conversations between soldiers abroad and their S.O.'s, and certainly not using it to spy on spouses or satisfy an agent's curiosity regarding someone. Nope, it's definitely for stopping terrorists, and we'll get one any day now... any day...'

    This one almost seems like a trick question. 'How the data is used' is missing, potentially intentionally, the bigger point, which is the fact that they have that data in the first place.

    However, as long as we're skipping the 'they shouldn't be gathering the data in the first place' step, I'm actually rather curious as to how that data's been used as well. There's been multiple, some serious, some less so, instances of abuse of the data/system, yet for all that data gathered, it apparently hasn't managed to catch or stop a single terrorist. They might claim it's been 'instrumental' in a number of cases, but scratch the surface and those are shown to be nothing more than lies or exaggerations used to try to justify the programs.

    So if all that data-gathering ability has been used to spy on regular citizens and government employees/representatives, and hasn't been used to catch any actual terrorists... yeah, I'm wondering just what they're doing with the data myself.

     

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  2.  
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    Anonymous Coward, Jan 7th, 2014 @ 6:02am

    Ha Ha Ha!!!!

    An opponent should use this clip to show that Schumer knows nothing about his job or how the government operates, followed by comments along the lines of...

    "Sounds like you guys keep voting in the village idiot, you going to keep this up?"

    With the follow response from the general public.

    "We have not changed our diaper yet, why would we now, when he is still just as dirty as last time someone asked us to change it!"

     

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  3.  
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    RyanNerd (profile), Jan 7th, 2014 @ 6:13am

    Amerika's Kangaroo Court

    Just ask Manning if he thinks he got a fair trail.

     

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    silverscarcat (profile), Jan 7th, 2014 @ 6:16am

    Re: Amerika's Kangaroo Court

    Of course he did! Why, he was ONLY given 35 years! /sarc

     

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  5.  
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    That One Guy (profile), Jan 7th, 2014 @ 6:20am

    Re: Amerika's Kangaroo Court

    Given how much embarrassment he caused to several high up and well connected people, he's lucky he got a trial at all, and after only three years or imprisonment and torture at that! /s

     

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  6.  
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    David, Jan 7th, 2014 @ 6:50am

    Re: On the contrary...

    NSA: '54 cases! I mean 2! I mean...'

    Give them a break. They managed to convince the German minister of inner affairs to his satisfaction that their work was used to thwart terrorist plots on German grounds.

    So why don't we get to see the details? Well, how do you "thwart" a "terrorist plot"? Phone the purported terrorist and ask him to stop?

    It's pretty obvious that if any thwarting had happened, it consisted of serious tampering with the suspects rights.

    "Oh, we kidnapped, tortured and killed about 30 guys in Germany without due process and without involving the local authorities. Rest assured, they were bad."

    So even if (and that's a very big if) any "plots" were "thwarted", they probably won't want too much publicity for having given Germany back the Gestapo, except that it is run by the U.S.A. this time.

     

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  7.  
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    Anonymous Howard (profile), Jan 7th, 2014 @ 6:53am

    Re: Re: Amerika's Kangaroo Court

    At least he got away without a weekend (month, years, life..) in Guatanamo Wellness Centre.

     

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  8.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:03am

    What's with all the experts on trials conducted under the auspices of the Uniform Code of Military Justice? Are people experts such that they can say with some measure of merit that the trial was not even close to conforming to legal mandates governing such proceedings, or are they simply upset that BM was convicted? Not sure how to break it to them, but military court martials are not trials before Judge Roy Bean where the outcome has been determined pre-trial and the proceedings are merely for show as was the recent case in NK.

    As for Snowden, federal whistleblower rights are not available to him since he is not a federal employee. His personal motivations are almost certainly not relevant evidence. The question is generally whether or not he disclosed classified information as he was duty bound to not do. Perhaps he may be able to make the very difficult argument that the information should never have been classified, in which case he may be able to attack one of the prima facie elements of the crime that must be proven by the prosecution in order to secure a guilty verdict.

    When it comes to the rules of evidence, the generally derive in the first instance from the judicial branch, but are then submitted to the Congress for its "Good Housekeeping Seal of Approval". Relevancy is a cornerstone of what is admissible as evidence, so it seems almost impossible for the this aspect of the rules to undergo any sort of a major revision. Why? If evidence of the type being talked about here could be presented, the ability to present such evidence is a two way street. For every "this is my justification for why I did it and why this makes me less blameworthy" the prosecution would be able to present evidence to the contrary. As it is, while such evidence may not be admissible in the case in chief, it typically comes in during the sentencing phase of the trial.

     

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  9.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:17am

    "it's time for members of the media to start pushing back at those who suggest it is. "

    Unfortunately, when it comes to the MSM, truth never gets the attention it deserves. Only propaganda gets a lot of attention.

     

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  10.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:22am

    sad

    The american judiciary is a giant joke that doesn't even try to follow the constitution. None of these "exceptions" for national security are found anywhere in the constitution and it's a clear violation of the right to a fair trial

     

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    Anonymous Coward, Jan 7th, 2014 @ 7:22am

    Intresting how even russia has more respectable courts than the US who was pretty much the symbol of justice a few decades ago.

     

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  12.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:23am

    Re:

    His personal motivations are almost certainly not relevant evidence.


    Intent of the perpetrator is always relevant evidence. It's the difference between murder and justifiable homicide. The difference between manslaughter and murder. And the difference between spying and whistle-blowing.

     

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  13.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:23am

    Also, the government needs to get over this already. It's ancient history. I know our government so desperately hates to lose despite how wrong they are and they see Snowden getting away with doing what's right as having lost (and Snowden having won) but this is ancient history. You lost. Find something else to do already and stop crying over spilled milk. It's over, you lost.

    It's like you are still stuck in the denial phase. You can't accept the fact that you lost a long time ago. It's ancient history already.

     

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  14.  
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    Anonymous Coward, Jan 7th, 2014 @ 7:38am

    "Senator Chuck Schumer on ABC's "This Week."

    (A)nother (B)rainwashed (C)itizen

     

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  15.  
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    nasch (profile), Jan 7th, 2014 @ 7:43am

    Re: Ha Ha Ha!!!!

    An opponent should use this clip to show that Schumer knows nothing about his job or how the government operates

    "when in fact such arguments would be ruled inadmissable at trial" just doesn't have the zing campaign ads need. It plays well at TechDirt, but not for the general public.

     

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  16.  
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    nasch (profile), Jan 7th, 2014 @ 7:47am

    Re:

    What's with all the experts on trials conducted under the auspices of the Uniform Code of Military Justice? Are people experts such that they can say with some measure of merit that the trial was not even close to conforming to legal mandates governing such proceedings, or are they simply upset that BM was convicted?

    You don't have to be a legal expert to conclude that either the law wasn't followed or there is something wrong with the law.

    As for Snowden, federal whistleblower rights are not available to him since he is not a federal employee.

    Even if that's true (I would be interested in a reference), under the Obama administration whistleblower rights have been "you have the right to be prosecuted under the Espionage Act".

    For every "this is my justification for why I did it and why this makes me less blameworthy" the prosecution would be able to present evidence to the contrary.

    Why does that make it impossible for the rules to be changed?

     

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  17.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:02am

    Re: Re: On the contrary...

    They would have had to get people jailed ... who was put in jail exactly and where is the trial I can look up and read about?

     

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  18.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:09am

    Re: Re:

    Absolutely, intent is important, but intent as used here is did he intend to disclose information, and not why did he disclose information. Something like the latter is what typically is presented in the sentencing phases of a trial if the defendant is convicted.

    Whistle-blowing arises under federal law in association with a federal employee. Here Snowden was employed by a federal contractor, so provisions of federal law covering federal employees have no bearing on his case.

     

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  19.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:12am

    Re:

    I wait with bated breath for the trials of those who Putin has vowed to annihilate. That does leave me with any belief that a fair trial under Russia's judicial system is in the works if and when they are caught.

     

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  20.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:15am

    Re: Re:

    One does not have to be a legal expert to conclude anything, but as a general rule it does help to have some measure of expertise if one want to arrive at a conclusion that has even a modicum of merit.

    As for the last sentence, be careful what you wish for...

     

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  21.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:17am

    Re: Re:

    "does not leave me" should lead off the last sentence.

     

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  22.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:24am

    Re: Re: Re:

    "intent as used here is did he intend to disclose information, and not why did he disclose information."

    If his argument is that he's being a whistleblower then of course the intent of a whistleblower is to disclose information. So the argument of someone claiming a whistleblower defense would be did he intend to blow the whistle or did he intend to harm the U.S.

     

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  23. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Jan 7th, 2014 @ 8:32am

    Sorry DUMBASS, but Manning is not a "she" no matter how much he says he is because ... HE STILL HAS A COCK!

     

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  24. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Jan 7th, 2014 @ 8:34am

    LOLOLOLOL - You can call "Chelsea" Manning a "she" if you want to but the guys in the mens prison will be calling him "bitch"!

     

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  25.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:34am

    Re: Re: Re: Re:

    Again, he is not a federal employee, so he is not entitled to the rights associated with federal employees who "whistle-blow". The term whistle blower has been used around here in many instances, but it is an inaccurate term with respect to legal proceedings under these circumstances.

     

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  26.  
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    Anonymous Coward, Jan 7th, 2014 @ 8:49am

    Re: Re: Re: Re: Re:

    Not being entitled to whistle blower rights associated with federal employees does not mean he cannot defend himself by saying he's a whistle blower. Whistle blowing has been around longer than the term itself has, much less any specific legal protections. If he argues that he's not guilty of spying because he was whistle blowing, and the jury agrees, then he's not guilty of spying, regardless of whether the law says he's not supposed to receive federal whistle blower protections. That's part of the point of being judged by a jury of your peers instead of the government simply handing down a sentence "because it's the law".

     

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  27.  
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    Ninja (profile), Jan 7th, 2014 @ 8:56am

    But... But... This time will be different. We swear we'll be nice and fair! - US Govt

    Or some variation of the "Trust us, we know what's better for the country" mantra.

     

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  28.  
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    Anonymous Coward, Jan 7th, 2014 @ 9:03am

    Like a boss

    I bet he would kill himself in the most extreme case of suicide we've ever seen.

    200 .44 shots, 90 50cal shots, 9 thermonuclear bomb blast to the back, 300 gallons of bear mace, 400 knife wounds, and 97,000 club wounds.

     

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  29.  
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    nasch (profile), Jan 7th, 2014 @ 9:45am

    Re: Re: Re:

    One does not have to be a legal expert to conclude anything, but as a general rule it does help to have some measure of expertise if one want to arrive at a conclusion that has even a modicum of merit.

    If one is making a legal argument, one should know something about the law. If one is making a moral argument, it is not necessary.

    As for the last sentence, be careful what you wish for...

    Meaning Congress is just as likely to make it even worse if they were to do something? I'm not too worried about that possibility since the chances of them doing anything about this issue seem remote.

     

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  30.  
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    Rikuo (profile), Jan 7th, 2014 @ 9:46am

    Re:

    Wow...think about that for a second. You presumably read this article and this is the one thing you're concerned enough about to type a comment over? Think about how that makes you look to the rest of us.

     

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  31.  
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    FM Hilton, Jan 7th, 2014 @ 9:48am

    As if

    The truth of the matter is that if Edward Snowden ever made the unwise decision to come back to the US, he wouldn't even get as far as a jury trial.

    The Feds would clap him into a very secure location, far far away from any journalists. He'd be lucky to have a pretrial hearing in a year.

    They don't want to ever chance his airing his grievances, or the list of things he knows about the NSA-they'd be sure to make him a silent prisoner.

    Mind you, not dead-but for all intents and purposes he would be dead to the world.

    Chelsea Manning should know that one.

    Justice? Ha, what a concept!

     

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  32.  
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    Anonymous Coward, Jan 7th, 2014 @ 9:55am

    Re:

    Your opinion, to be sure, and not one that everyone agrees with. Its not your decision what anyone's gender is. Sorry to burst your bubble.

     

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  33.  
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    Mike Masnick (profile), Jan 7th, 2014 @ 9:56am

    Re:

    As for Snowden, federal whistleblower rights are not available to him since he is not a federal employee. His personal motivations are almost certainly not relevant evidence.

    None of which addresses the point of the article, which is that Senator Schumer and many others, including the President, have suggested that Snowden can come back and *present the evidence that he's a whistleblower* to the court. And that's wrong.

    Yet, what do you do? You try to take things off on a tangent. Anything to protect the surveillance state, eh?

     

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  34.  
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    Anonymous Coward, Jan 7th, 2014 @ 10:17am

    the only reasons those accused are not, basically, allowed to defend themselves is because it would show just how the government acts and how far it will go to try to cover how it acts, under the differing circumstances. it also shows how much in general they have to hide. if they didn't, there would be no objections to the accused giving a defense. the only way to protect themselves and whoever is responsible for bringing the charges, is to disallow the other side from speaking and giving actual EVIDENCE! this is equally apparent in cases such as the one against the Mega crowd, done on behalf of the entertainment industries. how that will be used to stop information being let out, i dont know. there's certainly no 'National Security' issue!

     

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  35.  
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    Anonymous Coward, Jan 7th, 2014 @ 10:21am

    Re: Re: Re: Re: Re:

    and that's how the government tries to get away with not giving anyone a whistleblower defense. By making everyone a contractor instead of a federal employee which partly defeats the purpose of even having whistelblower protections. Perhaps the law should be extended to include contractors so that the government can't simply find a cheap escape.

     

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  36.  
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    Not an Electronic Rodent (profile), Jan 7th, 2014 @ 11:23am

    Re: Re:

    Yet, what do you do? You try to take things off on a tangent
    This is what's known as the "Look! A Elephant!" Technique after the great Jack Slater but only really works at rooftop mob funerals...

     

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  37.  
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    John Fenderson (profile), Jan 7th, 2014 @ 11:30am

    Re:

    The question is generally whether or not he disclosed classified information as he was duty bound to not do.


    I would argue that he was duty-bound as a US citizen to disclose the information. Note, this is not a legal argument, it is a moral argument. The legal system is so corrupt nowadays that I do not consider it to have any moral, logical, or justice value.

     

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  38.  
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    Anonymous Coward, Jan 7th, 2014 @ 12:40pm

    Re: Re:

    Uh...I agreed that Schumer and others are wrong since Snowden's motivations, as you note by reference to other cases, would almost certainly be excluded from presentation to a jury as being irrelevant.

     

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  39.  
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    Anonymous Coward, Jan 7th, 2014 @ 1:36pm

    Re: Re: Re:

    So then what was your point in all this? To point out stuff we already know? Thanks.

    Either these politicians are telling lies or they are ignorant (though, by now at least, they should really know that what they are telling is false unless they live under a rock which ... why the heck did we elect such absent minded politicians to represent us?). So, instead of wasting your effort trying to either defend the lying politicians or attack Snowden why didn't you focus your efforts on criticizing our politicians for being so wrong about everything? What kind of assurance does it give me to believe that Snowden is the one who did something wrong and the politicians are the ones trying to do what's right when the politicians feeding me this spend their time either repeatedly showing blatant ignorance or telling lies. and when you try to defend an establishment composed of politicians that are either repeatedly ignorant or liars why should anyone take you seriously?

     

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  40.  
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    John85851 (profile), Jan 7th, 2014 @ 2:47pm

    Re: On the contrary...

    "...since any serious terrorist or terrorist group has known for years that electronic communications wasn't exactly secure, and have done everything they can to avoid using it."

    You bring up a lot of good points.
    Not to get off topic, but what's to stop terrorists from doing exactly this? What if they put out false "chatter", fully knowing the lines aren't secure saying that they're going attack JFK airport the day before Thanksgiving. They wouldn't have to actually do anything but sit back and watch as the US government shuts down one of the busiest airports on the busiest travel day.

     

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  41.  
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    nasch (profile), Jan 7th, 2014 @ 2:49pm

    Re: On the contrary...

    I'm pretty sure he does know that that sort of stuff would be inadmissible in a court

    Because Senators are well known for being highly knowledgeable about subjects they discuss in public? ;-)

     

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  42.  
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    That One Guy (profile), Jan 7th, 2014 @ 3:32pm

    Re: As if

    It wouldn't be hard for them to manage that at all.

    There's certainly more than enough rabid 'patriots' who would love the chance to take a literal shot at someone like Snowden, who's exposed the actions of the government and 'made the US look bad', so they could simply let one of those people take their shot.

    If they manage it, Snowden is out of the picture and their hands remain 'clean'. If the attempt is botched, they bundle Snowden away into 'protective custody' to some undisclosed location('for his protection' of course), and he simply disappears.

     

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  43.  
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    Anonymous Coward, Jan 7th, 2014 @ 6:09pm

    Re:

    And this is the mind of a solar panel engineer at work.

    No, mate, you're the cock.

     

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  44.  
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    That One Guy (profile), Jan 7th, 2014 @ 9:53pm

    Re: Re: On the contrary...

    What makes you think they haven't, or aren't planning just that sometime in the future? Wasn't that long ago after all that the US shut down a whole bunch of foreign embassies for a while due to a 'threatening message' one of the spy agencies had 'intercepted'.

    With that kind of result you can bet they'd at least consider how they can apparently cause mass havoc and panic, without having to do a thing more than let a dangerous sounded message be 'caught'.

     

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  45.  
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    Alana (profile), Jan 8th, 2014 @ 12:08pm

    Re:

    And this is one of the reasons why the LBGT community still needs to push for rights of that oft-maligned "T" part.

     

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  46.  
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    Anonymous Coward, Jan 8th, 2014 @ 6:05pm

    Are the laws too complicated for congress?

     

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  47.  
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    FM Hilton, Jan 8th, 2014 @ 7:36pm

    Simple little problem

    In any criminal case, the burden of proof lies with the prosecution, not the defense.

    In other words, the government has to prove beyond a shadow of a doubt that Snowden is not a whistleblower, and that he was a spy or traitor.

    Right now the world is leaning towards the whistle blower/hero stance, and I don't think any jury would ever convict him of anything, even if he were ever able to come back for any kangaroo court trial.

    I think the best any jury would be is a hung one.

    What I think is going to happen is that Snowden is going to wait it all out-for a new administration, and perhaps more importantly, more truth coming out about the NSA from other sources, as to make him the first but not last person to tell the truth about it.
    The NSA debacle is going to be a long-drawn out one, and he knows it will take a long time to take it down-but it will happen. The snowball is getting bigger by the week.

    Then he'll possibly be in a better position to get clemency from the newest administration-unless we get really stupid and vote in another Republican idiot.

    We can't afford as a nation to do that, can we?

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Jan 11th, 2014 @ 5:54pm

    Re:

    Ah, so you're one of those uninformed masses that believes that gender is purely decided by the physical characteristics of the person in question and the mental characteristics of gender have no bearing whatsoever. Congratulations, doctor.

     

    reply to this | link to this | view in thread ]


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