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The Espionage Act of 1917 Should Never Be Enforced

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Greenwald’s take on the specific charges brought against Edward Snowden is correct:

The US government has charged Edward Snowden with three felonies, including two under the Espionage Act, the 1917 statute enacted to criminalize dissent against World War I. My priority at the moment is working on our next set of stories, so I just want to briefly note a few points about this.

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

Exactly right. I don’t have any objection to Snowden being charged under more narrow statutes specifically dealing with releasing classified information; as Greenwald says, one element of civil disobedience is accepting the legal penalty. But the Espionage Act of 1917 is some of the worst legislation ever passed by the United States Congress, leading to such outcomes as being given a 10 year jail sentence and stripped of basic rights of citizenship for giving a speech. It has generally been unenforced since the Wilson administration until for very good reason; its overbreadth criminalizes basic political dissent. Its sudden and disgraceful revival under the Obama administration is an excellent illustration of the dangers inherent in keeping dangerous legislation on the books while trusting the executive branch not to start selectively enforcing it; to paraphrase Robert Jackson, the statute lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

It should be repealed, but until then (and, let’s be frank, we’re probably talking about “never”), the Obama administration should return to not enforcing it.

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  • Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ)

    There’s a classic Greenwaldism sneaky qualifier “of leakers”
    According to even Wikipedia:

    The media dubbed 1985 “Year of the spy”. U.S Navy civilian Jonathan Pollard was charged with 18 U.S.C. § 794(c), for selling info to Israel. His 1986 plea bargain did not get him out of a life sentence, after a ‘victim impact statement’ including a statement by Caspar Weinberger.[67] Larry Wu-Tai Chin, at CIA, was charged with 18 U.S.C. § 794(c) for selling info to China.[68] Ronald Pelton was dinged for 18 U.S.C. § 794(a), 794(c), & 798(a), for selling out to the Soviets, and ruining Operation Ivy Bells.[69] Edward Lee Howard was an ex-Peace Corps and ex-CIA agent charged with 17 U.S.C. § 794(c) for allegedly dealing with the Soviets. The FBI’s website says the 1980s was the “decade of the spy”, with dozens of arrests.[70]

    Is it your serious contention that every overpaid Booz-Allen consultant with an axe to grind should have authority over the decision to release US Secrets?

    • somethingblue

      I think it is Scott’s serious contention that if Snowden is to be charged, he should be charged under more narrow statutes specifically dealing with releasing classified information.

      • Snowden was charged with theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person,” according to the complaint. The last two charges were brought under the 1917 Espionage Act.

        Those are pretty narrowly drawn charges.

        • DocAmazing

          And you see no difference between selling military secrets to a foreign military and releasing details of domestic surveillance programs to a journalist?

          • I do and as far as I can tll, the law does. There are different sections of this much amended law for espionage and other offenses.

            Snowden went to China and supposedly told the South China Post about US operations in HK,China, and on Russian leaders.

            If that activity is legal than basically every bureaucrat or consultant in the US government has carte blanche to release anything he or she finds objectionable e.g. “My Christian beliefs compelled me to provide the names and home addresses of Gay Agenda activists in Uganda to the Kampala Daily Trumpet”.

          • joe from Lowell

            And you see no difference between selling military secrets to a foreign military and releasing details of domestic surveillance programs to a journalist?

            You mean the difference between a Treason charge and an espionage charge?

            You betcha. They totally should not have charged Bradley Manning with aiding the enemy. Just with espionage. The distinction between siding with the enemy and not doing that is, as you say, very significant.

          • joe from Lowell

            I see a difference between punching my neighbor in the head once and beating him unconscious.

            The sentences for those two assault and battery cases should reflect the important differences between the two episodes.

            In neither case, my opinion, and those of people who like me and hate my neighbor, about whether the assault was a good idea really shouldn’t come into it.

            • DocAmazing

              The comparison would be more: you find your neighbor beating his child and you punch him in the head vs. you take fifty bucks from the guy down the street to punch your neighbor in the head.

              Motive does come into it.

              • joe from Lowell

                You’re now talking about a different question than the one you began with. You began by asking about who one releases stolen, classified information to – a foreign government vs. the media.

                What you’re raising now is the issue of whether the facially illegal act meets the criteria for an affirmative defense.

                I was addressing your original point.

                • DocAmazing

                  Presumably, releasing the information to the media is not done for profit, but to bring attention to the information, while releasing it to a foreign government is done wither out of allegiance to that government, under duress, or for profit.

                  Whom one releases the information to is going to be a function of what one’s motive in releasing the information are.

              • joe from Lowell

                Also, raising the affirmative defense question is neither here nor there when it comes to the issue of whether he should be charged under this particular statute.

          • It would be a rather different case if Siwden didn’t start leaking stuff about U.S operations vis-a-vis China. But that happened.

        • somethingblue

          Scott’s objection, as I understand it, is not that the charges are overly broad, but that the statute is.

          • Richard

            The real problem with the Espionage Act of 1917 is the espionage provisions which are extremely broad. Snowden was NOT charged with espionage under the act. He was charged under the more narrow provisions of the act that deal with disclosure of unauthorized communications. Those provisions may also be somewhat overbroad but they are not the provisions which have caused the act to be justly criticized and they are not the provisions under which Eugene Debs was imprisoned.

    • tt

      What makes it a sneaky qualifier? Selling US secrets to other countries is actually different from leaking them to the public.

      • In some cases, but flying to China and discussing US Secrets with the South China Daily Post is really on the boundary. Who is paying for Snowden’s accommodations in China?

        • tt

          Is there any evidence that he gave anything to the South China Daily Post that he didn’t give to the Guardian?

      • Scott Lemieux

        What makes it a sneaky qualifier? Selling US secrets to other countries is actually different from leaking them to the public.

        Right. The fact that Snowden was not actually guilty of espionage seems highly relevant to whether he should be prosecuted under the Espionage Act.

        • sapient

          We don’t interpret criminal law by deciding from the broad title of an act whether or not someone seems guilty. Various provisions of the Espionage Act deal with other things besides “Espionage”. Whether or not he’s guilty of a crime under the Act is proved by looking at the elements of the crime he’s charged with, and figuring out whether his conduct satisfied those elements.

          • Scott Lemieux

            Yes, but more precisely Snowden is not plausibly guilty of leaking “with intent or reason to believe that the information is to be used to the injury of the United States” unless this is defined in an unacceptably broad way.

            • So he had no reason to believe that leaking about US intelligence efforts in China or against Putin could be used to the detriment of the United States? How do you know that?

              Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;

            • fka AWS

              Snowden is not plausibly guilty of leaking “with intent or reason to believe that the information is to be used to the injury of the United States” unless this is defined in an unacceptably broad way.

              Wait, what?

              • I presume that Snowden thinks 1) the programs he is exposing are wrong, illegal (or illegalish), or both, 2) detrimental to the populace (at least in terms of privacy), and 3) not particularly useful (or, at the very least, the benefit isn’t worth the costs in terms 1 and 2). Since he pretty well expressed aim is to eliminate these programs, one could argue that there’s no net injury intended and that any injury (in terms of world public opinion) was unavoidable given the rest of the situation (if one were going to stop the programs).

                Now, whether this covers “reason to believe” is interesting. But we have to understand what “injury” means.

            • Njorl

              “Intent”? You’re probably right.
              “Reason to believe”, you can’t be serious.

            • Uh…not sure I agree, Scott. Certainly this is true of the initial PRISM revelations (whether Greenwald or Perlstein are right about what those actually mean), but the details about cyberintelligence operations against China and Hong Kong?

              His intent may have been more to get on Hong Kong’s authorities’ good side to prevent an extradition, but he certainly knew the impact this would have on U.S intelligence operations.

            • FlipYrWhig

              What laws on the books that are unrelated to the Espionage Act could/should he be being indicted under instead?

      • Anonymous

        Selling US secrets to other countries is actually different from leaking them to the public.

        Yes. The difference is when leaking secrets to the public, other countries and the public know them.

    • José Arcadio Buendía

      No. Scott’s contention is that he, not the government, should decide what laws should and should not be enforced and that somehow, that is freedom.

      The correct headline should be “Congress Should Repeal or Amend The Espionage Act of 1917.”

      • DrDick

        Repeal, without question.

      • Walt

        Because nothing is quite as synonymous as freedom as putting a man in jail.

        • Indeed. When the iron boot heel of the state put Greenwald’s earlier client Matt Hale into the Gulag, we all became serfs.

          • Anonymous

            But boy, those pre-Stasi days were wonderful! Back then, before things like ethics and civil liberties were really understood, an individual could take it upon himself to surreptitiously record another person’s phone conversation, and do it just because it was convenient and furthered ones own ends. Now it’s just another monopoly of the state and we shake our heads, wondering where our freedom went.

            • Reilly

              Didn’t mean to be anon.

    • Ed

      Is it your serious contention that every overpaid Booz-Allen consultant with an axe to grind should have authority over the decision to release US Secrets?

      Jeffrey Toobin, welcome. You forgot to add “dropout.”

      No, indeed. Only the Authorities should have authority to release US Secrets. The Authorities know what is best for us. We can trust the Authorities. The Authorities are keeping us safe, and besides they’re mainly spying on them furriners. The Authorities have said all is legal, therefore it is legal, and if you’ve done nothing wrong, you have nothing to worry about. Besides, it’s Greenwald’s scoop.

      • That’s not a strawman, it’s a whole village of strawmen.

        “Hi, I’m NSA contractor Jack Smith, I’m a member of Promise Keepers, so I exercise my right to send Saudi Arabia the list of women in Saudi who have contacted the US consulate for help in getting out”.

        God knows, it would be authoritarian for the government to object.

      • joe from Lowell

        Vacuous libertarian pap.

    • Is it your serious contention that every overpaid Booz-Allen consultant with an axe to grind should have authority over the decision to release US Secrets?

      Yes.

  • I’m torn–is it the case that because the statute is overbroad and was used, under Wilson, to criminalize dissent–and I believe was used to imprison Eugene Debs (?) that any and all uses of parts of the statute are improper and immoral when applied to a person who has, in fact, leaked/exposed national secrets? They aren’t applying the law to Snowden (or Greenwald, for that matter) because he criticized the US government. He actually did the thing they are alleging he did which is to leak secrets.

    • Anonymous

      Good Lord!

      I actually agree with you!

  • Another Halocene Human

    I disagree. I think it should be repealed. Were other people charged with espionage in recent years charged under a different law?

    • No. Greenwald is using a rhetorical trick of distinguishing espionage law charges against “leakers” from other charges. Even then, it’s a weak claim.

      The question is whether someone like Snowden who takes a job with the NSA should be permitted to decide that, as a matter of policy, the US should not spy on foreign governments except during a war and face no consequences.

      • DocAmazing

        A related question is whether the executive branch should be permitted to decide to gather information on US citizens at home in peacetime and with effectively no oversight.

        • That’s a question, but as far as I know in this case there was both judicial and congressional oversight and explicit congressional authorization. So I don’t see the relevance.

          • One of the main points is that there is no real oversight. Digby pointed out that if you have a rubber stamp court, and a couple of congressmen who are prohibited by law from disclosing anything that is much reach oversight.

            How does one then get real over sight?

        • joe from Lowell

          The question is whether someone like Snowden who takes a job with the NSA should be permitted to decide that, as a matter of policy, the US should not spy on foreign governments except during a war and face no consequences.

          A related question is whether the executive branch should be permitted to decide to gather information on US citizens at home in peacetime and with effectively no oversight.

          The bolded question is relevant to the matter of charging Snowe. The other is not.

          • DocAmazing

            Goes to motive, and to the underlying theory of the crime. If Snowden leaked because he was attempting to slow up an ongoing illegal enterprise, that’s a defense.

            • Its not an illegal enterprise–that’s the whole point of the awful Patriot Act and what has followed on from it. It may be horrible and immoral but its not illegal. He’s not a whistleblower under the meaning of the act.

              • DocAmazing

                Actually, without knowing more details, we don’t know if what the NSA’s been up to is legal under FISA. That’s the problem with secrecy.

                • Look: why are they dribbling this out? If they have actual information about illegalities why not publish those first?

                  Ellsberg had the problem that he needed to “publish” in the pages of the NYT but since the rise of the internet there is no requirement that things be published in that format–they could have released the information on the net and been done with it. Why the flight to China? Why the dribbling out of information?

                • DocAmazing

                  Well, large-scale simultaneous release sure didn’t do Manning or WikiLeaks a lot of good. Seems like Greenwald and Snowden are responding to recent history.

            • joe from Lowell

              When you bring phrases like “should be permitted” – which suggests that it is permitted, and we’re discussing whether that is a good law – and “effectively no oversight,” you’re outside the question of exposing law-breaking, and debating policy.

              The whistleblower defense has never applied to policy disputes. If it did, there would have been nothing illegal in the leaking of Valerie Plame’s name.

              • DocAmazing

                No one–not even John Yoo–has ever attempted to torture the language enough to characterize Scooter Libby’s actions as “whistleblowing”.

                • joe from Lowell

                  I saw the claim that blowing Plame’s cover was “whistle blowing” quite frequently at the time.

                  Link

                  The Wall Street Journal ran this little prize:

                  Democrats and most of the Beltway press corps are baying for Karl Rove’s head over his role in exposing a case of CIA nepotism involving Joe Wilson and his wife, Valerie Plame. On the contrary, we’d say the White House political guru deserves a prize–perhaps the next iteration of the “Truth-Telling” award that The Nation magazine bestowed upon Mr. Wilson before the Senate Intelligence Committee exposed him as a fraud.

                  For Mr. Rove is turning out to be the real “whistleblower” in this whole sorry pseudo-scandal. He’s the one who warned Time’s Matthew Cooper and other reporters to be wary of Mr. Wilson’s credibility. He’s the one who told the press the truth that Mr. Wilson had been recommended for the CIA consulting gig by his wife, not by Vice President Dick Cheney as Mr. Wilson was asserting on the airwaves. In short, Mr. Rove provided important background so Americans could understand that Mr. Wilson wasn’t a whistleblower but was a partisan trying to discredit the Iraq War in an election campaign. Thank you, Mr.Rove.

                  Appalling, isn’t it? It’s impossible to keep up with how debased these people are.

              • DocAmazing

                Phrased another way: there is a strong possibility that documents leaked by Snowden would show that the NSA is acting outside of its legally-constituted authority–“illegally”, in non-weasel terminology–while the documents released by Libby had no possibility of uncovering law-breaking by Joe Wilson or Valerie Plame, nor were they characterized as doing so.

                • Also, don’t forget the 4th Amendment. FISA is probably unconstitutional to begin with.

                • There is no credible argument to that effect.

                • joe from Lowell

                  there is a strong possibility that documents leaked by Snowden would show that the NSA is acting outside of its legally-constituted authority–”illegally”, in non-weasel terminology

                  And if a gun nut FBI agent were to blab about a sting against gun owners, because he feels oh so very strongly that it violates the 2nd Amendment in his own, individual judgment, we should grant him the latitude to make that call, too?

                • DocAmazing

                  If a DEA agent were to blab about the DEA routinely using suveillance of hospitals to try to root out people stealing prescription pads, and wildly violating patient confidentiality, and revealed the information, thereby undermining the operation?

                  Yeah, revealing the existence of law-breaking among law enforcement (and intelligence) is what whistle-blowing is all about.

                  FBI stings have a really bad history of late, so your example is entertaining.

                • joe from Lowell

                  You keep using that term “lawbreaking.”

                  You’re seriously going to stake a defense of this guy on some supposed adherence to the rule of law?

                  Pick the argument up, cast it aside. Pick it up, cast it aside. Whatever is momentarily convenient, and then onto the next one.

                • DocAmazing

                  You’re going to defend law enforcement agencies from whistleblowers and leakers based on adherence to the rule of law? That’s far less logical.

      • The Dark Avenger

        No, the question is whether it is appropriate to charge Snowden with a law created in during WWII, and wasn’t created to deal with the leaking of classified information to the public, as in this case.

        • joe from Lowell

          This is a rather unexpected place to find an argument in favor of originalism and intent of the drafters.

          • Antonin Scalia

            Snowden’s prosecution should be left to the proper authority: the State of Arizona.

          • The Dark Avenger

            Congressional intend when it passed a given law is a valid point to raise in the adjudication of said law, asshole.

            • joe from Lowell

              …a concept you have never, ever, under any circumstances expressed or supported before it became momentarily convenient during an argument on the internet.

      • Jesse Levine

        Wrong question. He has the right to an opinion on whether the US should spy on ME, and if so inclined, act on that opinion.

      • cpinva

        “The question is whether someone like Snowden who takes a job with the NSA should be permitted to decide that, as a matter of policy, the US should not spy on foreign governments except during a war and face no consequences.”

        as I understand it, mr. snowden was never employed by the NSA, he was employed by gov’t contractor Booze Allen Hamilton, which did work for the NSA, to which mr. snowden was assigned. at no point was he ever employed directly by the NSA.

        presumably, he required security clearances, to handle the data he was charged with, and those security clearances were done by the NSA, but I have no idea whether any of this factors into the charges against him.

  • joe from Lowell

    Screw that.

    Rove, Libby, and the rest of the Valeria Plame leakers should have been charged under the Act.

  • Does everyone take it for granted that there is some, uh, “chinese wall” between Snowden handing information off to the Guardian and Snowden handing information off to a foreign government? Does intention matter that much in the wording of the indictment?

    • DocAmazing

      Was there a difference between Daniel Ellsberg and Klaus Fuchs? It’s not merely intention; the whole point of whistleblower statutes is that ongoing illegal enterprises will never be brought to light if they are able to prevent and punish leaks. Selling information to a foreign government (or to a corporation, which the DHS has been doing lately with a vengeance) is both legally and qualitatively different from bringing evidence of wrongdoing before the public.

      • Since you bring up Ellsberg:

        Opening arguments in the second trial of Ellsberg and Russo took place on January 17, 1973 in the federal courthouse in Los Angeles. After prosecutor David Nissen summarized what the government’s evidence against the two men would show, defense attorney Leonard Boudin delivered his opening statement. Boudin suggested that the Pentagon Papers “belong to the people of the United States.” Because of this public ownership, Boudin told jurors, copying them and giving them to the press, so that the American people could be told their contents, should not be considered theft. “You will come to the conclusion…that the revelation of this information to your senators and congressmen was helpful to the interests of the United States,” Boudin said.

        Leonard Boudin was my great uncle, and an amazing person. However I’d like to point out that Ellsberg stayed in this country, went briefly underground, and expected to go to prison for what he did. Snowden, definitionally, did not and does not. I know Ellsberg thinks he’s a hero but I’m not so sure.

        • DocAmazing

          Snowden has a keenly-honed sense of self-preservation. Manning’s imprisonment has been the focus of attention from outfits like Amnesty International, and the Nixon Administration was relatively inexperienced at handling leakers–that’s why the Plumbers were such a crude organization. (It didn’t help that leaking was going on at the highest levels: google “Moorer-Radford affair” for fun details.)

          The willingness to go to prison is all very noble, but we’re not talking about Kiriakou doing time with the ability to bring public attention to the circumstances of his captivity; we’re talking about secrecy in incarceration as well as in sentencing.

          Ellsberg recognizes that the intelligence apparatus has become more sophisticated about protecting itself since the 1970s.

        • cpinva

          “Boudin suggested that the Pentagon Papers “belong to the people of the United States.” Because of this public ownership, Boudin told jurors, copying them and giving them to the press, so that the American people could be told their contents, should not be considered theft.”

          arguably, one could make that same assertion in the present case: since that material was bought and paid for with tax dollars, it belongs, not to the NSA or the federal gov’t, but to the people of the United States; it is work product that I have helped pay for, and am therefore entitled to see.

          i’m guessing that no judge is going to allow that though, since it would essentially destroy all “National Security” arguments raised by the gov’t, to keep information out of the public domain.

          • Lots of information that the US taxpayers payed for is closely held and for good reason–does every citizen have a right to have the instruction manual for a nuclear bomb at home?

            • DocAmazing

              College physics texts will give you much of the information needed to assemble an atomic bomb. The limitation is obtaining fissionable material. That’s old news; the Progressive ran that story in the 1970s.

          • arguably, one could make that same assertion in the present case: since that material was bought and paid for with tax dollars, it belongs, not to the NSA or the federal gov’t, but to the people of the United States; it is work product that I have helped pay for, and am therefore entitled to see.

            Not everything that you help pay for are you entitled to see. Your child’s university education records, for example.

            Even if it’s not theft, it’s not necessarily thereby legal.

            This argument seems silly then and silly now. By and large I think governments should disseminate information, but I don’t think the “We paid for it, we get to see it” has legs. Not in open access publishing; not in state secrets; not in criminal records.

            There are good arguments for e.g., protecting whistleblowing or encouraging open access publishing, natch.

  • FlipYrWhig

    The argument that the Espionage Act is permanently tainted by its origins in “criminalizing dissent”… That kinda seems like saying that the Davis-Bacon Act is permanently tainted by its origins in racist complaints about job-stealing and thus the idea of “prevailing wages” should never be enforced either.

    • DocAmazing

      I would imagine that Scott’s point is that there are undoubtedly other laws under which espionage might be punished without adding weight to an abominably-crafted set of laws like the Espionage Act.

      • FlipYrWhig

        I defer to the resident law-talkin’ guys about what those non-abominable non-Espionage Act laws might be.

  • joe from Lowell

    I have a request:

    Every who both a) opposes charging Snowden with the information-leaking sections of the Espionage Act, and b) supports prosecuting him for leaking this information, but under some other law, please let me know.

    I’m a terrible, awful, cynical person – so much so that I’ve come to believe that there are people who take up and cast aside process arguments as mere pretexts for an underlying substantive position. I’d certainly like to see some of the people who are endorsing Greenwald’s ideas reply to this comment and prove me wrong.

    • DocAmazing

      I’m uninterested in the process arguments; I’ve seen too many bullshit prosecutions that relied on process arguments to be much impressed by them. However, given that people who are well aware of the frankly evil nature of much of what the NSA does are defending it out of some sense of loyalty to the Administration, I’m inclined to give Snowden the widest possible latitude in making the case that the NSA jumped the rails.

      • joe from Lowell

        Thank your for confirming my suspicions about this debate over the applicability of the Espionage Act.

        • DocAmazing

          Would you have drug cases prosecuted under the Antiterrorism and Effective Death Penalty Act of 1996? The language is in the Act to enable that; however, it would lend credibility to some extremely bad law. Likewise, using the engine under the hood of the Palmer Raids to go after whistleblowers cements some severely bad precedent and normalizes the application of an extremely bad set of laws.

          • A “whistleblower” has to expose criminal action on the part of the government. Given that (a) there are zero surprises in what Snowden published and (b) Senator Franken says this material has been authorized and overseen by Congress, it’s hard to make a case.

            • DocAmazing

              If there are zero surprises for the population of the US at large, then there are surely no surprises for the intelligence services of foreign nations (who, presumably, are better-informed about the doings of spies) and therefore no breach of secrecy.

              Can’t be both ways.

              • Sigh. Of course there can. There is a difference between knowing that “of course the US spies on Russia just as Russia spies on the US” and knowing the operational details.

                • DocAmazing

                  Then I’d say we learned something from Snowden that we didn’t previously know, and some of it was surprising–hence the media attention.

          • FlipYrWhig

            What about using RICO to prosecute organizations that block abortion providers? The law was crafted for gangs and the Mafia, but it’s been used in other circumstances too.

            • DocAmazing

              There were attempts to use RICO against EarthFirst!, as well. These are the sorts of slopes oft called “slippery”.

              • FlipYrWhig

                True, but the fact that some slopes are slippery is not in itself a reason to level all slopes. I’m trying to get at how far the intent of the original law, nefarious or benign, needs to count when deciding how to apply subsequent provisions. If the laws governing the mishandling of classified information stem from something entitled the Espionage Act, that doesn’t invariably mean that all such laws are the fruit of a poisonous Red Scare tree, does it?

                IANAL so I’m struggling for examples and parallels after citing the Davis-Bacon Act earlier. But this seems not to be a very widely-held principle, to wit, every provision of a wider law that is “the engine under the hood of” something foul is itself anathema. “Eminent domain” laws are sometimes used for salutary purposes, sometimes for awful ones, but I don’t think I’ve ever heard it argued that because they have been at times associated with misuse and corruption they should never be enforced.

          • joe from Lowell

            I’m uninterested in the process arguments

            Would you have drug cases prosecuted under the Antiterrorism and Effective Death Penalty Act of 1996?

            Pick it up, cast it aside. Pick it up, cast it aside.

            • DocAmazing

              The point of Scott’s post was that a particular set of laws–the Espionage Act–was a particularly bad choice because its use invites abuse. Sorry to be sticking to the point.

              • joe from Lowell

                Your lack of interest is process arguments continues to shine through.

                Do you ever make an effort to align what you write to what you honestly think, or is it all bullshitting?

                • DocAmazing

                  What I think is that process arguments are the purview of lawyerly types. What I also think is that occasionally addressing those arguments has some utility.

                  I speak almost no German, but I will from time to time thank someone with “danke”. Doesn’t mean I’m interested in a conversation in German.

  • wengler

    Of course Snowden will be prosecuted to the full extent of the law. He embarrassed and exposed totalitarian electronic espionage programs that pay out hundreds of billions of dollars to powerful people.

    Ellsberg is mentioned a lot, but it isn’t the same because people in power thought what he did was important and protected him. They still also had the control over the dissemination of information.

    What we have now is a security/surveillance state apparatus which is supported nearly 100 percent by institutional players and is terrified over their perceived loss of control of the dissemination of information. The White House can’t just call up the New York Times and have them impound this story. Their only option is to impose as draconian a punishment as possible.

    This all stems from the fundamental failure of the Obama administration. Instead of exposing the criminality of the Bush regime, they covered it up. Instead of changing course on these programs, they doubled down. It was a very sad lie Obama told us, that should’ve been evident as such when he voted for retroactive immunity for telecoms.

    • Muad-dib

      This.

    • Yes, it’s the United Stasi of America. Help, we’re being oppressed. Nobody can utter an opinion without going to jail. In fact, hyperbole is a capitol crime.

      Why didn’t I realize that? Must be those daburn microwaves again.

      • DocAmazing

        So we’re back to “yay, team”. Good to have that cleared up.

        • No, we are back to “you have to actually make an argument instead of shrieking Stasi State”.

          • DocAmazing

            Making believe that the intelligence apparatus under a Democratic president has somehow become benign, and that no one has been stuck in the joint for pointless and bullshit reasons under Obama because he isn’t Bush isn’t making a case: it’s arguing that there’s nothing wrong with the bleeding and unconscious guy because he’s still got a pulse.

            Are you seriously making the argument that surveillance of US citizens in the US is appropriately regulated and subject to oversight and has had no ongoing negative consequences?

            • There is an enormous gap between saying everything is fine and that we live in the United Stasi of America. In fact, if I were conspiracy minded, I would think that the hyperbolic and nutball rhetoric is designed precisely to shield the security establishment from any actual scrutiny.

              • BobS

                I’m reading an interesting back & forth with a lot of good points made on both sides of the argument, including some by you. The only “hyperbolic and nutball rhetoric” that stands out is your silly “United Stasi of America” that you seem to think is so clever you repeat it several times.

            • Thlayli

              Are you seriously making the argument that surveillance of US citizens in the US is appropriately regulated and subject to oversight and has had no ongoing negative consequences?

              Yes. You have no reason to believe otherwise, aside from some Mulderian “THE GOVERNMENT LIES ABOUT EVERYTHING” impulse.

              You have chosen to buy into Greenwald’s characterization of the Snowden material hook line and sinker, and you’re mystified that anyone is arguing with you.

              • DocAmazing

                We live in a country where our email habits are used to assemble psychological profiles of us to sell to retailers, and you argue that surveillance is adequately regulated?

                We live in a country where federal agencies collect information on political protestors and give it to large corporations, and you argue that surveillance is adequately regulated?

                We live in a country where police can and do sort through our garbage, and you argue that surveillance is adequately regulated?

                Ignoring a half-century of the surveillance state isn’t an expression of maturity or seriousness.

        • joe from Lowell

          OK, this was something to behold:

          This all stems from the fundamental failure of the Obama administration.

          Yes, it’s the United Stasi of America. Help, we’re being oppressed. Nobody can utter an opinion without going to jail. In fact, hyperbole is a capitol crime.

          So we’re back to “yay, team”.

          OK, class, which person in this exchange offered a statement that includes nothing but an opinion of Barack Obama, and which side mocked that statement?

          Can anyone help Doc out?

          • DocAmazing

            Actually, joe, your usual reading-comprhension problems are hampering you again. First, Wengler’s comment was not about Barack Obama, but about the inaction of his administration. To state that the current administration did not punish the lawbreakng of the previous administration is fact, not opinion, unless you have some example to the contrary to offer.

            The response was of the “criticism of the administration is overblown and unjustified” school, and the response to the response is about partisanship.

            But keep trying!

            • joe from Lowell

              Wengler’s comment was not about Barack Obama, but about the inaction of his administration.

              Nor was rootless e’s, and yet you jumped in with your generic “Yay team!” blather regardless.

              That’s actually the problem. It’s sort of embarrassing that you don’t understand that.

              • DocAmazing

                And with rootless e’s, we’re expected to accept that the security state abuses that are ongoing are acceptable or mitigated because a Democrat is in the White House.

                You’re slowly getting better, though. Never give up!

  • helena handbasket

    Maybe it’s eleven-dimensional chess. Holder wants the espionage act repealed and they aren’t really too p’o’d about Snowden after all, so they charge under that statute and won’t mind if it goes away.

  • So Joe Smith, NSA/CIA contractor shows up in France and says: “Since the Obama administration is trying to turn the US into a Sharia Law Caliphate, as Glenn Beck says, I was justified in providing the Karachi Daily Bugle with the advance plans for the illegal so-called president’s attack on Osama Bin Ladin.”

    Hey it’s a matter of conscience. Let’s not criminalize journalism or whatever phrase Fox is pushing this week.

    • DocAmazing

      So the Department of Homeland Security in a town with a big presence of political protestors and dissidents targeting Large Corporation X with their activism shows up at the offices of Large Corporation X and says: “Since these possibly terrorist and certainly unsightly people are trying to disrupt your company’s profit-making, we are justified in passing along all of the personal and financial information we have been able to harvest (at taxpayer expense) on these so-called political activists.”

      So you’re right. We have trading in intelligence with people not authorized to access that intelligence, who we know have less-than-pure motives. Let’s prosecute the DHS under the Espionage Act.

      • Corporation X is foreign government? I don’t get your point.
        My point is that there are legitimate government secrets and reasons to enforce laws.

        • DocAmazing

          Corporation X is not authorized to receive classified info, and is not supposed to be supplied with intelligence at taxpayer expense. Seems that what constitutes a “legitimate government secret” varies with the authority of the people or agencies that want to pass along those secrets, and to whom.

          • No, actually they vary depending on laws which Congress passes.

            Those laws are often not optimal.

            • DocAmazing

              Oversight. Enforcement. That’s the part that keeps getting missed here. We’re talking about very large government and public-private outfits that have huge capabilities and are subject to essentially no scrutiny or punishment, because anytime anyone gets close to exposing their wrongdoing, they conveniently yell “national security”. This has been going on for half a century, under presidents both Democratic and Republican, and defending it is not evidence of a mature worldview.

              • So Al Franken is lying?

                • benjoya

                  That is not a response to Doc’s comment.

                • So Al Franken is lying?

                  Yes.

  • “Oversight. Enforcement. That’s the part that keeps getting missed here. ”

    For fuck’s sake.

    In an interview with Minneapolis-based CBS affiliate WCCO, Sen. Al Franken (D-MN) defended the NSA’s surveillance program — specifically against the notion of that the government is spying on its citizens. It’s about national security, he contended, and it’s worked.

    WCCO’s Pat Kessler noted that Franken devoted much of his first term to privacy issues and that Franken said he was “very well aware of” the programs that are now making news because he was briefed on him. (He is a member of the Senate Judiciary Committee.)

    “I can assure you, this is not about spying on the American people,” the senator said.

    He further added that the surveillance has been good for national security.

    “I have a high level of confidence that this is used to protect us, and I know that it has been successful in preventing terrorism,” Franken said.

    This is what is known as oversight.

    If you have a general critique of the security establishment, and I certainly do, why tie it to a sensationalized and bad faith story about some asshole who did not actually expose any government misbehavior let alone a crime.

    • janastas359

      Agreed. Whenever I hear “We need more oversight on program x,” my next question is, what would, in your mind, constitute acceptable oversight?

      I think that’s the part that keeps getting missed. I’m not an expert on these matters but as far as I’ve heard the oversight is warrants approved by a judge plus congressional approval by people like Al Franken. What exactly would constitute the “right” amount of oversight?

      • sapient

        The answer is that there would never be enough “oversight” for Glenn Greenwald and his followers who believe that secrecy is always bad, and that government is never trustworthy. I haven’t seen any indication at all that it matters who we elect, what they stand for, what they’re trying to accomplish, etc.

        • DocAmazing

          Gee, how about FISA judges that aren’t right-wing Roberts appointees? How about a commission of judges that review FISA decisions? How about Congressional approval outside of just the Intelligence Committees and a quick dog-and-pony show to impress the AL Frankens intiothinking that they’re in the loop?

          • sibusisodan

            Those are all great suggestions (well, the first two – any Congressional approval is going to be subject to the kind of pulling-wool-over-eyes that you’re worried about, and I’m not sure adding another ‘just a committee’ will solve that problem if you’re already inclined to write off the Intelligence Committees).

            Now, how do those, politically, happen? I’m stumped as to a plausible path. But the least plausible path involves allowing the current incarnation of the Republican party further access to the levers of power. They won’t do anything about this, and they don’t want to.

            The least implausible paths all involve the Democrats. Hopefully better Democrats than the current lot.

            So what’s missing from your critique – and your repeated point of ‘yay team’ is how any of what you wish to see will come about without buttressing and supporting the Democrat ‘team’.

            I’d be interested to hear your thoughts on that – since I may have my own political calculus wrong.

            • The answer is either (a) by helping the Republican win, the Principled Progressives will chastise the Democrats sufficiently so that they will become Principled Progressives, igniting a wave of left populist fervor that will sweep Alan Grayson into the Presidency with huge majorities in Congress OR (b) right wing power will, when things get bad enough, ignite a wave of left populist fervor magically that will sweep the Jill Stein/Rand Paul reform party into power ….

              Which of these is more ridiculous is a matter of debate.

              • DocAmazing

                What doesn’t improve the situatios pretending that it doesn’t exist. Wishing it away doesn’t even rise to the level of childishness.

                What also doesn’t work is failing to challenge the Democrats on the point. If the Democrats drift far enough right, they lose their voters and the Republicans win. If the Democrats can demonstrate that they actually are better than Republicans, they get votes. The public at large may be afraid of terrorism, but they don’t like being spied on–the response to Smowden is pretty clear on that point. The way the Democrats both improve this situation and their own grip on power is to address it and use the authority they already have to curb intelligence excesses. Costs nothing; gains goodwill.

                Or you could just write off the left part of the party, declare yourselves the adults, improve nothing, and blame someone else for poor turnout at the polls.

          • janastas359

            I don’t understand how this would be an improvement. Your suggestions boil down to “Do what they’re doing now, only do more of it.” If you’re so offended by one judge reviewing warrants, why would a group of them do so? If you think that the NSA or whatever is lying to and tricking the intelligence committee, then why would the entire congress, who presumably know less about it, help the matter?

            • DocAmazing

              If you’re so offended by one judge reviewing warrants, why would a group of them do so?

              For the same reason that the Supreme Court isn’t just one guy, maybe?

              If you think that the NSA or whatever is lying to and tricking the intelligence committee, then why would the entire congress, who presumably know less about it, help the matter?

              See above, then add in that quaint idea about representative democracy that I like to hang on to.

    • I said it up thread and it isn’t original with me you’ve got a court that has never said no and a couple of congressmen and senators who are sworn to secrecy. If that is your idea of real oversight, you’ve got some strange ideas of what real oversight is.

  • I know I’m supposed to care a lot about the NSA surveillance program–not only do I come from a family that was wiretapped but at one point or another several members of my family fell afoul of the law and/or were pursued by the FBI. But I don’t. I don’t care about it because I see a lot of other organizations–non state, principally, as well as sub state, state level, district level and one implacable party (the Republican Party) as exerting much more disasterous control over my life, my privacy, my health, my future and my children’s future. I just can’t get worked up about this spying thing. I care more about the fact that its carried out by Booz Allen and by private corporations and advertising agencies than I do about government level spying. And I care more about what happens to me and to other women, to my right to make health care decisions, to immigration, to voting if we join in backstabbing the Obama administration over this and end up letting the Republican get back into full control of all three branches.

    I’d be interested to know whether other women, and minorities, feel the same way I do about this? I have a lot of other fish to fry politically. Things I care about? Ending the war on terror, voting rights, women’s rights, implementing health care, saving SS and medicare and medicaid, public education, –to the extent that this spying scandal is distracting us, as a people, from working to guarantee all of us the right to vote, to have health care, to educate our children I just don’t think its a good use of my time. If it lets the Republicans and the faux libertarians get more power? I’m horrified. There is no way they will ever be any better on the security state than the dems, however bad the dems get. Its not in the Republican DNA-all the more so now that they are realizing that white men are going to be in the minority and that they could legislate to push all the deadly government action off onto brown people and women.

    • DocAmazing

      Separating out the concern over the surveillance state from the other concerns is, in my opinion, both artificial and counterproductive. Let’s look at a couple of items on your list. War on terror: kept at fever pitch by security state. Voting rights: organizing to maintain those rights draws the attention of intelligence groups–from the old Citizens’ Council/Red Squad days to DHS/Occupy. We could go on, but the point is that things overlap, and dismissing one group’s concerns…but that sounds mighty familiar, doesn’t it?

      The other thing to remember is that the Booz Allen/ad agencies/NSA spying are not separate and discrete–they are all of a piece, and all need to be addressed together. Finally, when you mention women and minorities and the security state, remember that it’s intimately tied into the prison-industrial complex. Information gathered gets transmitted to various flavors of cop, and results in arrests and detentions, which tend to fall more heavily on communities of color.

      • I don’t actually believe that the kind of information the NSA is gathering is passed to “various flavors of cops” and that this impacts communities of color more. I’m pretty sure that the uneven application of law, the harsh penal system, and the arrests, drug war etc… happen without any high tech intervention at all. They were going on before the surveillance state and I doubt if the collection of this data, whatever it is, impacts it at all.

        This is the first time in my adult life that I see the Democratic party fighting like mad for a whole lot of shit that is really important to me–from voting rights to women’s rights. Just at the moment when the Republican party has gone stark, raving, mad. Your point is: everything is connected? Mine too. I won’t sacrifice those other interests I listed in order to attack the current administration over the existence of a National Security State that pre-existed it and that will long continue after it. I don’t see the utility. And I don’t see the payoff.

        • DocAmazing

          In other words: yay team.

          We can’t call the Dems on their abuses because it might just empower the Republicans somehow.

          • janastas359

            Yeah, certainly prioritizing different things than you makes someone an Obot or a cultist. Good argument pal!

            • DocAmazing

              Not remotely sure where you got that reading. “Cultist”, no. “Operating from a defensive crouch”, yes.

          • joe from Lowell

            Throughout this thread, whenever Doc gets cornered, he writes “Yay, team,” even when his interlocutor hasn’t written a single word about the administration.

            It’s a social bullying dodge. Instead of being able to rebut an argument, he seeks to make it seem socially unacceptable to make it.

            • DocAmazing

              even when his interlocutor hasn’t written a single word about the administration

              I see the Democratic party fighting like mad for a whole lot of shit that is really important to me

              I won’t sacrifice those other interests I listed in order to attack the current administration

              Try sounding out the words, joe.

        • JL

          The security state existed before, and will continue to exist after. But I’m not so sure that this means the high-tech aspects don’t really matter. I’ve seen a bunch of folks, fellow activists, targeted by the local DHS fusion center – which combines high-tech and low-tech aspects of the security state, as well as federal and state/local ones. That targeting was pretty scary (and sometimes played out in ways with gendered implications – I know targeted women who were followed into elevators and cornered, followed home in the dark, that sort of thing).

          I’ve also worked at a company that did basic research on some of the tech that’s now used to analyze things like phone connections in the name of anti-terrorism, so I have some understanding of what the tech was meant to do. The combination of those two experiences unnerves me. Yeah, the US can target dissent without that tech, cops can pick activists to target and find info to pressure them with without that tech, but I still think that it’s worth speaking out against making that process easier and more powerful.

      • Uh…since when was Occupy about voting rights?

    • What’s most remarkable about what you write is that common sense like that is being shouted down so effectively.

      • joe from Lowell

        Yay team! Woo hop yay team!

        Gimme a T!

        Gimme an E!

      • joe from Lowell

        Shouted down, yes.

        I question “effectively.”

        Looking back over this thread, the word “asymmetrical” comes to mind.

    • JL

      I’d be interested to know whether other women, and minorities, feel the same way I do about this?

      I’ve been staying out of these conversations (and also not on the Internet much lately), but honestly, no, I don’t. I mean, I can’t say that I’m so surprised about what the NSA is doing, but it really strongly does bother me (and I do slightly fear being targeted by it).

      I’m a lesser-evil voter myself, and I’m also glad to see the Dems taking up some issues that have needed taking up for a while. And I’m pretty skeptical that calling the Obama admin out on the NSA and anti-whistleblower stuff is actually going to put the GOP in power. People calling Obama out on drone strikes, or Gitmo, for instance, didn’t hand the election to Romney. It didn’t stop other Dems like Elizabeth Warren from being elected. It seems like a lot of liberals I encounter who participate in blogs and other online discourse really overestimate the ability of the anti-Obama, Dems-are-as-bad-as-GOP faction of the left to swing elections against the Dems, maybe because that faction can be very vocal in online discourse.

      I understand the defensive-crouch impulse. But I think it’s an overreaction here. I also think that when I practice lesser-evil voting I have a special obligation to call out the people that I voted for on those grounds when they screw up. If nobody calls them out, if there’s no mobilization on this issue, it will never change. If they were instead, say, screwing up badly on abortion, but doing well for the first time in a long time on labor issues, I’d still want to call them out on abortion, because it’s a meaningful issue, and I care that they not suck on it. Same with this.

  • Jewish Steel

    I’d be interested to know whether other women, and minorities, feel the same way I do about this?

    I’m neither of these things but none of Obama’s “”betrayals”” (double quotes for emphasis!)bother me as much as the vast inequalities of wealth that have accelerated though my lifetime.

    I’m a white dude. I’ll be okay. The poor, powerless? I expect not.

    • Jewish Steel

      Oh, that was meant in reply to aimai ^ above ^

      • I didn’t mean to impugn the honor of white men–I’m related to tons of them. I’m just feeling, looking at the spread of the discussion, that a lot of this focus on the charging of Snowden is kind of a white guy thing. ( I’m not pointing the finger at anyone here but just thinking about the way this is being represented in Greenwald and others).

        I don’t get the idea that Greenwald seems to have that there’s some special exemption for “well meaning young white guys” in the law, in any law. Snowden had a security clearance and absconded with private/proprietary information. Failing to charge him, and then charging some other person when they do the same thing seems highly problematic. People keep insisting that Snowden’s motives were pure but absent his assertions what’s the evidence for that? And in any event none of the statues (whether the horrific Wilsonian ones or the ones Scott would have preferred to see him charged under) seem to have a real “good intentions” exclusion–do they?

        • Jewish Steel

          I’m just feeling, looking at the spread of the discussion, that a lot of this focus on the charging of Snowden is kind of a white guy thing.

          Agree 100% White men have got the luxury of worrying after their privacy. They don’t have to wonder if they’re going to get to vote or if their sexual behavior is going to get proscribed by a bunch of members of the opposite sex.

        • Amani, this is just classic “My concerns are more important then you concerns.” I’ve heard this all my adult life. What you are working for just isn’t as important as other things you should be working for. Like fore instance:…(fill in blank)….

          If you honestly believe that the Democrats in power are going to, in the long run, protect and promote those interests you delineate well more power to you. One road will get you there quicker than the other, but they both end up in the same place.

        • People keep insisting that Snowden’s motives were pure

          Snowden’s motives are irrelevant.

  • FlipYrWhig

    Scott writes that the Espionage Act is usually unenforced. Are there other laws governing the disclosure of classified information that are invoked instead? When other people have disclosed classified information in a context other than espionage per se, how have they been prosecuted?

  • DocAmazing
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