I happen to have Daniel Ellsberg right here ...

I happen to have Daniel Ellsberg right here ...

by digby

John Kerry's accusations of "cowardice" and fatuous admonitions for Edward Snowden to "man up" the other day were rather depressing considering how such schoolyard taunts of effeminacy were used against him in 2004. But his use of Daniel Ellsberg as an example of the "good whistleblower" needs to be examined more closely. And who better to do it than ... Daniel Ellsberg:

On the Today show and CBS, Kerry complimented me again – and said Snowden "should man up and come back to the United States" to face charges. But John Kerry is wrong, because that's not the measure of patriotism when it comes to whistleblowing, for me or Snowden, who is facing the same criminal charges I did for exposing the Pentagon Papers.

As Snowden told Brian Williams on NBC later that night and Snowden's lawyer told me the next morning, he would have no chance whatsoever to come home and make his case – in public or in court.

Snowden would come back home to a jail cell – and not just an ordinary cell-block but isolation in solitary confinement, not just for months like Chelsea Manning but for the rest of his sentence, and probably the rest of his life. His legal adviser, Ben Wizner, told me that he estimates Snowden's chance of being allowed out on bail as zero. (I was out on bond, speaking against the Vietnam war, the whole 23 months I was under indictment).

More importantly, the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing. Legal scholars have strongly argued that the US supreme court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense. The Espionage Act, as applied to whistleblowers, violates the First Amendment, is what they're saying.

As I know from my own case, even Snowden's own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.

I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.

But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he "had never heard of a case where a defendant was not permitted to tell the jury why he did what he did." The judge responded: well, you're hearing one now.

And so it has been with every subsequent whistleblower under indictment, and so it would be if Edward Snowden was on trial in an American courtroom now.

Indeed, in recent years, the silencing effect of the Espionage Act has only become worse. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words "whistleblowing" and "overclassification" in his trial. (Thankfully, the Justice Department's case fell apart one day before it was to begin). In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution "need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially."

We saw this entire scenario play out last summer in the trial of Chelsea Manning. The military judge in that case did not let Manning or her lawyer argue her intent, the lack of damage to the US, overclassification of the cables or the benefits of the leaks ... until she was already found guilty.

Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to "make their case" from outside the United States.

I think people may need to review the Ellsberg case to get an idea of how it was he eluded jail time. It wasn't because he "manned up." It was because of government misconduct, which included the break-in at his psychiatrist's office:

Due to the gross governmental misconduct and illegal evidence gathering, and the defense by Leonard Boudin and Harvard Law School professor Charles Nesson, Judge Byrne dismissed all charges against Ellsberg and Russo on May 11, 1973 after the government claimed it had lost records of wiretapping against Ellsberg. Byrne ruled: "The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.

I think you can see the irony here, can't you? It was "losing the records" of illegal wiretapping that freed Ellsberg...

Suffice to say that it wasn't that the courts declared Ellsberg a patriot, as John Kerry seems to imply. It was the abuse of power of the US Government, which was so flagrant and appalling that the court had no choice but to let him go. That strikes me as useful history when considering why Edward Snowden would opt not to fall on his sword so that Big John Kerry and the bros wouldn't call him a wimp. That, along with the more recent history that Ellsberg relays in his piece above, shows that it's not simply a matter of "facing the music" as everyone seems to say. What they want him to do is allow the government to put him in jail without the ability to defend himself --- over a story that is already public. That means it's purely a means to "make an example" of him. But he's not a martyr, he's a whistleblower, and he has no obligation to throw himself on the pyre so the government can soothe its defenders by burning the witch.

The government could do something in between if it chose. It could allow him to find permanent asylum in another country like Bolivia, which would deny him his home but not his freedom. Truly that ought to be enough of a human sacrifice for this deed which everyone acknowledges has resulted in a much-needed examination and pullback of a surveillance program run amock.