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Obama Wrongly Suggests Snowden Could Mount Public Interest Defense in Federal Court

In a press conference at the White House, President Barack Obama was asked by MSNBC’s Chuck Todd what he thought about former NSA contractor Edward Snowden, who exposed US government surveillance programs, and whether he was a patriot.

Obama replied, “I don’t think Mr. Snowden was a patriot,” and went on to assert, “My preference — and I think the American people’s preference — would have been for a lawful, orderly examination of these laws; a thoughtful, fact-based debate that would then lead us to a better place, because I never made claims that all the surveillance technologies that have developed since the time some of these laws had been put in place somehow didn’t require, potentially, some additional reforms. That’s exactly what I called for.”

“Mr. Snowden’s been charged with three felonies,” he said. “If in fact he believes that what he did was right, then, like every American citizen, he can come here, appear before the court with a lawyer and make his case.”

“If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community for the first time,” Obama suggested.

Obama also described how the information had “come out in drips and in drabs” and sometimes “sideways.” His administration had tried to “correct the record” but usually it had been too late. A general impression had “taken hold, not only among the American public but also around the world, that somehow we’re out there willy-nilly just sucking in information on everybody and doing what we please with it.”

He acknowledged that he had assumed wrongly that “if we had checks and balances from courts and Congress, that traditional system would be enough to give assurance.” This assumption “proved to be undermined by what happened after the leaks.” People have had questions about “this program.” And, he said it was important to go ahead and answer these questions.

Obama suggested putting the “whole elephant” out in the open to examine what is working, what is not working and consider “additional protections” to move forward.

“There’s no doubt that Mr. Snowden’s leaks triggered a much more rapid and passionate response than would have been the case if I had simply appointed this review board to go through — and I’d sat down with Congress and we had worked this thing through,” Obama conceded.

He said, “It would have been less exciting and it would not have generated as much press, but that he thought the country “would have gotten to the same place” and “would have done so without putting at risk our national security and some very vital ways that we are able to get intelligence that we need to secure the country.”

First, the United States Justice Department has charged Snowden with violating the Espionage Act, which affords him next to no ability to mount a public interest defense in court. In fact, in a recent national security leak case involving former State Department employee Stephen Kim, the judge lowered the burden of proof for prosecutors from having to demonstrate information could possibly have caused damage to the United States to only having to prove it was “national defense information” that was released.

That ruling was invoked in the trial of Pfc. Bradley Manning, and, while it is unknown how the judge factored this ruling into her decision to convict Manning of multiple violations of the Espionage Act, what is clear is that this ruling is a precedent that the Justice Department would use against Snowden in federal court if he returned to the United States. So, he would not be able to mount a defense that what he did was in the public interest because it would be considered by the judge to be irrelevant to the charges.

Second, Obama should not be so certain that the executive order he issued would have protected Snowden’s whistleblowing. It included no legal enforcement mechanism.

The executive order specifically stated:

This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

In other words, the more than two thousand words in this executive order were just that: words. It was an acknowledgment that there was a problem. It put a general belief the president has that national security whistleblowers should have some semblance of rights into writing. But, it did not offer a way for whistleblowers to challenge the decision of an agency to fire them in court.

One should be very skeptical that Snowden would have been able to blow the whistle and reveal all this information without retaliation if he had gone through “proper channels.” The case of NSA whistleblower Thomas Drake is a prime example of what can happen to those who go through “proper channels.” He went to the Defense Department Inspector General and that person gave his name (and others’ names) to the Justice Department as possible suspects responsible for a leak.

Third, the Quinnipiac University poll released on August 1 is enough to seriously call into question the statement made by Obama that this is not how the American people wanted to find out about government surveillance programs. Fifty-five percent of Americans polled were found to consider Snowden a whistleblower.

Also, on July 10, a poll (also conducted by Quinnipiac) found a “a massive shift in attitudes” as 40-45 percent of voters considered government’s anti-terrorism efforts to go “too far in restricting civil liberties, a reversal from a January 14, 2010,” poll by Quinnipiac where 25-63% said “such activities didn’t go far enough to adequately protect the country.”

Finally, this statement—”The leaks triggered a much more rapid & passionate response than would’ve been the case if I had simply appointed this review board to go through and sat with Congress,” is incredibly remarkable because it is nearly an open admission that Snowden’s leaks have contributed to a valuable debate on privacy and security that the country needed to have.

If Obama is willing to admit that at least one of the programs exposed by Snowden should be reviewed by a high-level board, then that is pretty much a concession that the information Snowden exposed is alarming and does need to be examined.

Essentially, Obama finds himself in a situation where he has to admit that debate on surveillance is important because there is no way to stop it. The press conference and announcement of a possible review was part of an administration effort to gain control of the debate so they can influence the agenda. But, he will not support Snowden as a whistleblower.

This makes his position nearly identical to many in the American press. As New York Times reporter James Risen said on CNN, “We wouldn’t be having this discussion if it wasn’t for [Snowden]. . . .That’s the thing I don’t understand about the climate in Washington these days, is that people want to have debates on television elsewhere, but then you want to throw the people who start the debates in jail.”

It is unbelievable to think this debate ever would have happened without Snowden. It is also incredible that he is willing to suggest publicly that a review board and Congress would have ever done what it should and advanced reforms without outrage from people around the world.

Overall, it is a prime example of the arrogance of a presidential administration that anointed itself “The Most Transparent Administration Ever” and has not been at all.


Timothy B. Lee for The Washington Post writes:

…[T]he Obama administration showed little interest in subjecting the NSA to meaningful oversight and public debate prior to Snowden’s actions. When Sen. Ron Wyden (D-Ore.) asked for a “ballpark figure” of the number of Americans whose information was being collected by the NSA last year, the agency refused to give the senator any information, arguing that doing so would violate the privacy of those whose information was collected.

In March, at a Congressional hearing, Director of National Intelligence James Clapper answered “no sir” when Wyden asked whether the NSA had collected “any type of data at all on millions of Americans.” We now know his statement was incorrect.

Wyden and Sen. Jay Rockefeller (D-W.V.) had also been pressing for almost four years for access to the Foreign Intelligence Surveillance Court’s legal opinions interpreting Section 215 of the Patriot Act. Until Snowden’s disclosures, the senators made no headway. Now, the Obama administration has announced it intends to release its legal interpretation of Section 215…

It’s purely delusional to suggest that the Obama administration was willing to start a debate on privacy and surveillance and Snowden’s whistleblowing was not necessary for this debate to happen.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."