If, As Eric Holder Now Admits, Snowden Did 'A Public Service,' Why Does He Still Want Him In Jail?

from the because-he's-either-misinformed-or-lying dept

As you may have heard, over the weekend, former Attorney General Eric Holder appeared on a podcast with his former administration colleague, David Axelrod, for a podcast. The ~1 hour discussion is pretty wide-ranging, but right towards the end Axelrod brings up questions about surveillance and how the adminstration handled the NSA, leading Holder to make an offhand comment that is now making headlines, noting that he believed Ed Snowden had done “a public service” in revealing various NSA files to journalists. Of course, he immediately then focuses on why Snowden should go to jail. The statement is interesting because it’s been like pulling teeth to get anyone associated with the administration in any way to acknowledge that maybe what Snowden did was a good thing. That said, almost everything else that Holder says is either wrong, misleading or questionable regarding Snowden and surveillance. Here’s a quick transcript of the relevant parts (it doesn’t appear that CNN, which produces the show, or Axelrod, have released a full transcript, so I apologize for any typos), followed by some thoughts:

Axelrod: How difficult were these issues that involved civil liberties on the one hand, and security on the other? And how do you weigh those things?

Holder: I thought the President really put it best when he said, “simply because we have the ability to do something, doesn’t necessarily mean that we should.” We had the capacity to do a whole range of things under these listening programs. But after a while, I remember sending memos to the President asking him if we really need to do this, given the way in which we are focusing on people’s lives, and given the return that we were getting, which was not, in any way, substantial.

We can certainly argue about the way in which Snowden did what he did, but I think he actually performed a public service by raising the debate that we engaged in, and by the changes that we made. Now I would say that doing what he did — the way he did it — was inappropriate and illegal. Maybe he could have gone to Congress and done these things…

Axelrod: He would argue that he tried various ways and couldn’t. But what should be done with him now?

Holder: I think he’s got to make a decision. 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. I think there’s got to be a consequence for what he’s done. But I think that in deciding what an appropriate sentence should be, I think a judge could take into account the usefulness of having had that national debate.

Axelrod: But you think he will still serve time?

Holder: I think he should. I mean, I think he harmed American interests. I know, I can’t go into…

Axelrod: He would say he didn’t…

Holder: No that’s not true. That’s simply not true. I know there are ways in which certain of our agents were put at risk. Relationships with other countries were harmed. Our ability to keep the American people safe was compromised. There were all kinds of “redos” that had to be put in place as a result of what he had done. And while those things were being done, we were blind in really critical areas. So what he did was not without consequence.

Now almost everything Holder states here is misleading and/or inaccurate — perhaps everything other than the claim that what Snowden did was a public service. First off, the claim that a judge could take into account the public debate that was created is a bit of sneaky wording. Holder knows that there is no public interest or whistleblowing defense allowed under Espionage Act claims. Snowden could not claim that what he did was in the public interest as part of his trial at all. And note that Holder chose his words carefully here, only saying that a judge could take that info into account for sentencing purposes, following a trial in which those defenses were not allowed. But that only applies to sentencing and not guilt.

Second, as for the harm done, remember that just a few seconds earlier Holder was admitting that these programs did very little of value? To then spin it around and claim that some sort of “darkness” was created because of this seems pretty silly. And, yes, it probably did harm some relationships, but is that really Snowden’s fault… or the fault of what the leaks revealed about what the US government was doing in the first place?

Third, it’s ridiculous to think that going to Congress with these concerns would do anything. After all, at the time of Snowden, we already had Senator Ron Wyden screaming about these issues with his colleagues, and no one paid attention. Does Holder really think that if Snowden had raised the issues with Congress, anyone would have paid attention? Besides, we just had a former senior Defense Department official publicly admit that the “proper channels” were a joke for someone like Snowden, highlighting how the government regularly sic’d the Holder-run DOJ on anyone who blew the whistle, and that Holder and his team were all too willing to go after whistleblowers.

And that brings us to the next question, in which Axelrod highlights that criticism of the Holder DOJ, that it prosecuted more whistleblowers/leakers than every other administration… combined. Holder’s answer — I kid you not — is basically, “but just think of all the people we didn’t prosecute.” Axelrod points out that not only has the DOJ gone after leakers, but reporters as well, and Holder tries to “correct” him again in a misleading way:

Holder: No, we didn’t charge any reporters with any criminal offenses. But we brought charges against people who had broken oaths to keep things secret.

People say ‘more than any other administration in history,’ I think we brought a total of five or six — we inherited one or two — so I think you have to keep the raw number in mind and understand also that we brought five or six, whatever the number, and turned away probably close to a hundred, that were brought to us by the intelligence community, where they asked the Justice Department to investigate and to prosecute. We made the decision not to.

Of course, they harassed and threatened journalists, including James Risen, who they threatened to jail if he wouldn’t reveal his sources. Or how about reporter James Rosen, who the DOJ falsely claimed was a “co-conspirator” in a case where Rosen was leaked information about North Korea from the State Department. Okay, maybe they didn’t directly charge reporters with crimes, but the DOJ sure came mighty close to that line in a manner that was pure intimidation.

Also, the whole thing about going after people who “broke their oath” — that’s complete bullshit. The only oath that people took was the same one that Holder himself took, which was to protect and defend the Constitution. People may have violated a contractual non-disclosure agreement not to reveal this information, and you can argue that there should be punishment for breach of contract, but that sounds a lot less dramatic and horrifying than “breaking an oath.”

But, really, the bigger question in all of this, even after you cut through the ridiculous FUD from Holder, is that if he truly believes Snowden did do a “public service” and it can be shown — as it has been — that there really weren’t any other reasonable ways to create that public debate and changes to the system, then shouldn’t we be concerned that this should still lead to criminal charges and the possibility of being locked up forever? Because it seems inherently and rather obviously fucked up to suggest that the only legitimate way to raise an important public debate about surveillance powers is to break the law. If that’s the case, then it seems fairly obvious that the law needs to change.

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Comments on “If, As Eric Holder Now Admits, Snowden Did 'A Public Service,' Why Does He Still Want Him In Jail?”

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52 Comments
Anonymous Anonymous Coward (profile) says:

Truth therein Lies

The lying liar (Government) is upset because the thruthy thruther (Snowden and/or other whistle-blowers) spilled the beans, but go on to say that they like their chili without beans, so it’s OK, but the truth is, truth needs to go to jail because the beans got spilled, even though we don’t add them to the dish…um…erm…something like that.

The judge can tell, even though he is not allowed to notice, so chili lovers who like beans should look for a giant beanstalk. Look up…no more up…a little higher!

The Government lies to everyone and calls that intelligence, but gets upset when the truth of that comes out, and calls that treason. That is more than just a double standard, maybe it is just another lying lie.

Getting power is easy, maintaining power is harder, controlling power is the most difficult.

Whatever says:

dumping versus whistle blowing

The problem I run into with Snowden (and to a lesser extent that transgender military dudette) is that they were not whistle blowing on any one particular area. Rather, the extracted the maximum number of documents with the hope that someone would find something bad in them.

Snowden could have accomplished the same thing without (a) exposing almost every covert agent and sympathizer in every country, and (b) without harming the relationship between the US and other countries.

The scope and magnitude of the documents exposed by Snowden go well beyond whistle blowing any particular area, and served more as an overall indictment of there systems. That general nature makes him more the data dumper, and less a whistle blower.

(Oh and Mike, please tell your minions that my exit IP changed, they apparently got a new connection… having all my comments go into moderation for a few days at a time is borderline censorship).

Uriel-238 (profile) says:

Re: dumping versus whistle blowing

doing what he did — the way he did it — was inappropriate and illegal.

I, too, am still waiting for the alternative method, the proper channels that wouldn’t have resulted in a cover-up. At this point proper channels has become synonymous with error trapping for those with a conscience.

Data Dumping is nothing but whistleblowing when it is tossing said data to the public. The notion that the people of a nation are incapable of correctly processing that data is a notion of elitism, belies the implication that no-one is capable of correctly processing the data (and probably shouldn’t be looking at it) and also undermines the notion of government for the people by the people.

Ninja (profile) says:

Re: dumping versus whistle blowing

Could he? Even though he tried and it didn’t work? Even though almost every single attempt at ‘whitleblowing via official channels’ ever documented either went nowhere or ended with brutal Government harassment against the ones that tried?

Oh, I forgot you live in a rosy world where official channels work and unicorns poop candy. Sorry.

Whatever says:

Re: Re: dumping versus whistle blowing

An example would be to pick a particular case or situation, and release the documents anonymously (via Wikileaks, example) and see what the results are. Keep releasing them on a regular basis until something happens. The best part is that people could focus on one thing at a time and work to properly understand it’s implications. Data dumps tend to lose impact for individual situations, and I think could overwhelm the public and media and make the story hard to follow.

There has to be something other than the all or nothing method. The collateral damage from a full on dump may be just too great, and the amount of important information perhaps lost in the sea of data.

JMT says:

Re: dumping versus whistle blowing

“The problem I run into with Snowden (and to a lesser extent that transgender military dudette) is that they were not whistle blowing on any one particular area.”

So now we can add transphobia to your list of distinguishing personality traits?

“Rather, the extracted the maximum number of documents with the hope that someone would find something bad in them.”

Snowden did not “hope” someone would find something bad, he knew damn well they would find lots of it.

“Snowden could have accomplished the same thing without (a) exposing almost every covert agent and sympathizer in every country, and (b) without harming the relationship between the US and other countries.”

(a) Citation please, and (b) it’s was the US government’s actions that hurt their reputation, not Snowden.

techflaws (profile) says:

Re: dumping versus whistle blowing

is that they were not whistle blowing on any one particular area

Since when do asshats like you get to define what’s whistleblowing? Keep dreaming.

having all my comments go into moderation for a few days at a time is borderline censorship

Actually, it’s just that the people listening to you think that you’re an asshole.

GrooveNeedle (profile) says:

Second, as for the harm done, remember that just a few seconds earlier Holder was admitting that these programs did very little of value? To then spin it around and claim that some sort of “darkness” was created because of this seems pretty silly. And, yes, it probably did harm some relationships, but is that really Snowden’s fault… or the fault of what the leaks revealed about what the US government was doing in the first place?

Let’s provide an analogy that government officials can understand…

Congressman John Doe cheats on his wife, effectively ruining his marriage, even if his wife hasn’t found out yet. The friend of Mrs. Doe, Jackie, finds out 2 years later, and informs Mrs. Doe. According to Holder, Jackie is now responsible for ruining their marriage and should go to jail for adultery.

jimbo says:

Re: Harm american interests is a crime?

If that were true then we’d have a lot of administration personnel in jail, including past presidents.

That harming of interests is besides the point. Snowden didn’t harm american interests, he was just the messenger. What Holder is saying is that it’s ok to kill the messenger.

That One Guy (profile) says:

Re: "I wasn't violating their privacy until they spotted me outside their bedroom window your honor."

As a reminder Holder isn’t the only one arguing ‘We weren’t doing anything wrong until people knew what we were doing’, at least one other person, Mike Rogers, argued pretty much exactly that, that the one who revealed the wrong-doing is the one causing harm, not the one actually doing the action in the first place.

The ‘Peeping Tom’ defense as I thought of it at the time, the idea that so long as you don’t know someone installed a camera in your bedroom/is reading your emails/listening to your phone calls your privacy hasn’t been violated because you don’t know about it.

That One Guy (profile) says:

Re: Define 'American'

Harmed…

‘American interests’ in the sense that the interests of the american public were harmed? No, far from it in fact their interests were served most admirably by Snowden’s actions.

‘American interests’ in the sense that the interests of the american government were harmed? Quite possibly, having someone provide evidence for just how many cookie jars you’re raiding isn’t likely to make you many friends, but that’s their fault for raiding those jars, not Snowden’s fault for exposing them doing so.

‘American interests’ in the sense that the interests of the american government agencies were harmed? Very much so, they went above and beyond making sure that their actions were as hidden and obfuscated as possible, from everyone they could, having a sudden burst of light illuminated what they were doing means now they have to justify what they were doing, and the public has a chance to object to their actions.

Uriel-238 (profile) says:

Re: Re: Define 'American'

I assumed American Interests is according to Charlie Wilson in 1955, What’s good for General Motors is good for America.

We’ve pretty much established by behavior that corporate citizens of the United States are the only citizens that matter.

Which would go far in explaining why the benefit of Snowden’s revelations (or Manning’s or Kiriakou’s, or…) have not been generally recognized by officials of the United States.

blogagog (profile) says:

First agreement ever

This is the first time I agree with Holder. Snowden did a good thing in letting Americans know that our government was spying on us. Then he did a treasonous thing by explaining to other governments who and how they were being spied upon.

It’s like saving a drowning lady, and then shooting someone in the face. You’re a hero that needs to go to jail.

Uriel-238 (profile) says:

Re: First agreement ever

If we’re going to continue with your analogy, it would be saving the lady being intentionally drowned by a guy, by shooting him in the face.

It was one action which both exposed US tradecraft to both the US people and the enemies of the US, simultaneously.

The thing is these actions are illegal anyway, if anyone else but a US government agent is doing it. (If I started a spying corporation that tracked civilian movements and activities and then sold that material to any country that wanted it, I’d be regarded as a criminal.)

Exposure and embarrassment is one of the risks of espionage, and is never the fault of the messenger, but the spies. And they were lying to their own administrators about what they were doing and why.

It’s all on them, and that the NSA hasn’t been dismantled raises questions as to the allegiances of the US representatives, as they are not in line with the good of the US people.

blogagog (profile) says:

Re: Re: Re: First agreement ever

Specifically, he should have kept this part under wraps:

According to the leaked documents in Spiegel, NSA officials acknowledged that any disclosure of the existence of the foreign listening posts would lead to “grave damage” for US relations with other governments.

Such posts exist in 19 European cities, including Paris, Madrid, Rome and Frankfurt, according to the magazine, which has based its reports on documents provided by Edward Snowden, the former NSA contractor.

Uriel-238 (profile) says:

Re: Re: Re:2 Espionage is still criminal. Exposure of it is still whistleblowing.

Any disclosure of the existence of the foreign listening posts would lead to “grave damage” for US relations with other governments.

Let us turn this around then: Say that a whistleblower exposed Chinese listening posts in United States agencies. Would you be blaming China for those posts? Or would you be blaming the Whistleblower for ruining Chinese / US relations?

Sounds like the latter.

That One Guy (profile) says:

Re: Re: Re: First agreement ever

In which case your problem should be with the papers that released those particular bits, as he had the data only so long as it took to hand it off, after that it was others who decided what to release.

In addition as I noted below something like ‘A USG agency is spying on a foreign head of state’ was not likely news to anyone but the public, as you can be sure that both the USG and other governments are doing their best to get intel like that on a regular basis and everyone involved knows about it. At best the information regarding it gave other governments an opportunity to act outraged and shocked to score some easy political points against the USG, I really doubt any of them changed much other than some minor tightening of security in response.

That One Guy (profile) says:

Re: First agreement ever

Yeah, funny thing but large governments usually aren’t staffed by raging idiots, their intelligence agencies even less so. Nothing Snowden ‘revealed’ was likely even remotely surprising or new to any of them, and given how easy it was for Snowden to do what he did you can be pretty sure that there were and likely still are others working for foreign governments or groups still in the agency funneling information out.

The only groups that were surprised by what was leaked was the public and some politicians(others probably knew but simply didn’t care), and both of those are required to be properly informed if they’re to have a hand in what the government is doing, something which simply isn’t possible when they’re being lied to.

Anonymous Coward says:

Everyone who thinks he should stand trial is doing so under the assumption that all trials in the U.S. are fair (or fair enough) to result in justice, or that the government / law enforcement cannot possibly be on the wrong side of anything. One cannot argue against blind allegiance to the government, but other minds may be changed if they could be made to understand that the system is rigged such that he would absolutely not get a fair trial.

The actual charges a grand jury brought against him are under seal, but they’re widely assumed to be treason. In U.S. treason cases, the defendant does not the full range of basic protections offered by the court system to people accused of lesser crimes.

1. From the moment he sets foot in the country, he would likely be in solitary confinement, a form of punishment which impairs his cognitive abilities and interferes with the process of legal counsel.

2. He essentially cannot speak in his own defense (to say why he did whatever he admits to doing), nor can he bring up the illegality of any of the government programs at issue (despite the Supreme Court having declared one of them illegal already), and thus there could be no evidence or witness testimony presented to support such claims.

The notion that he would be getting a fair trial under these circumstances is ludicrous. The government can make its case against him unimpeded, and he can’t say anything other than “I did it” or “I didn’t do it”. That’s not justice. We ridicule and rebuke the nations where those kinds of unethical show trials are routine. Yet we turn a blind eye to it in our own country, in cases where we’re just “really, really mad at” somebody.

Anonymous Coward says:

My guess,

is that if brand R or Clinton (their proxy democrat) wins POTUS, things will remain the same, but if Bernie wins, Obama will pardon the guy to show some solidarity and take a hit for the incumbent.

There has been a nationwide petition for Snowdens pardon for some time. So there isn’t a problem justifying the move. Of course the CIA may grassy knoll his ass if he does.

And even if Snowden IS pardoned, he’d be stupid to come home for at least several more years. Executive order or not, some of the organizations in play here have LONG memories.

Anonymous Coward says:

Re: My guess,

As well as Snowden’s case is known, him being capped or ahem… committing suicide would literally ruin the whole US citizenry’s trust of the 3LA for at least the next presidential term. With Dolan running hot for president, nobody sane would risk that for petty revenge.

Oh wait… nobody sane… never mind, carry on.

GEMont (profile) says:

What does not kill the Elite, makes it stronger.

There were all kinds of “redos” that had to be put in place as a result of what he had done.

Now that’s the slip that I’d say was most important.

Tells us all, that, as the chess pieces exposed by Snowden were being examined and discussed by a tiny number of slightly angry people – the internet – brand new identical secret operations, using newer equipment and better trained personnel were being secretly slid into place to insure that nothing was lost in the daily discourse of humanity.

Translated: Everything Snowden exposed to the world’s population about the secret machinations of America’s Elite, was being “redo”ne at tax payer’s expense as fast as operations were being exposed – and “redo”ne to be even better at staying unseen.

The Beta Teams went into operation using plan B and a shit-load of fresh technical and intelligence upgrades, while the Alpha Teams-In-Place burned their kits and slipped quietly back into the shadows to start their journey to disparate safe havens. Contingency. S.O.P.

Generally, he’s saying that everything Snowden showed us, is now operating even better, doing exactly the same thing better, in a different and better place.

New day. Same shit.

For me, he says the “authorities” did not “change”, ANY of their clandestine operations, except to make a few things harder for the public to find next time, and upgrade a few things that needed fixing anyway, because they did exactly that and did it right away, long before any “dialogue” could be started. As each expose occurred, contingency plans had but one purpose – to continue current operations at all costs.

Basically Shock Testing a new system.

Or, to put it in the simplest of street jargon…

He said “Fuck you all.”

Again.

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