Post Classifieds

Editorial: Lack of whistleblower protections left Snowden no choice but to flee

By Editorial Board
On April 29, 2014

During her visit on April 23, 2014, Hillary Clinton was prompted by UConn President Susan Herbst to elaborate on the former Secretary of State's opinion concerning Edward Snowden and his revelation of mass constitutional violations committed by the NSA. Clinton expressed her confusion over why Snowden fled the country instead of participating in the debate in his home country, and added that Snowden would have been afforded protection as a whistleblower. In reality, Clinton's "confusion" stems from her lack of understanding of how whistleblowers are prosecuted in the United States.
Daniel Ellsberg, the former RAND Corporation military analyst who leaked the Pentagon Papers 43 years ago, explained in an Op-Ed for the Washington Post that the Espionage Act of 1917 has been reinterpreted by FISA - the secret court system with jurisdiction over whistleblower cases - to not allow public statements by defendants, as was seen in Chelsea Manning's case. In fact, the case U.S. v. John Kiriakou - the former CIA officer who leaked files revealing the use of torture by US employees - set a precedent which bars defendants from using evidence that their leaks had a positive effect on society in their testimony.
The worst precedent to be set by a FISA court was in the 2013 case U.S. v Stephen Kim - a former State Department official. In it, Justice Colleen Kollar-Kotelly ruled, "The Court declines to adopt the Morison court's construction of information relating to the "national defense" insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States." U.S. v Morison is a 30-year-old case that had previously required the government to prove a disclosure had "potentially" harmed the US or aided an adversary, but Justice Kollar-Kotelly decided that regardless of what you have leaked - if the government considered it classified - you go to prison.
If Clinton, a graduate of Yale Law School, simply read the Espionage Act and its accompanying judicial precedents, she would see that Snowden would not only be unable to participate in any debates, but would also be sentenced to decades of imprisonment - like Chelsea Manning - simply for being a whistleblower. Snowden is also not taking "refuge in Russia," as Clinton said, but rather had his passport revoked by the U.S. when he attempted to leave Moscow, as Snowden's legal advisor Ben Wizner pointed out on "Meet the Press." Lastly, Snowden's pre-recorded question to President Putin may have been dodged and dismissed, but at least it was challenging, which is more than can be said about President Herbst's pre-screened tee-ball questions.

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