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