Snepp on Snowden
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The only thing separating Snowden from legal immolation is staying outside the U.S.
The ex-CIA spy dishes on witch hunts and whistleblowers
Frank Snepp touched off a firestorm of controversy in 1977 with the publication of Decent Interval, his unauthorized, embarrassing account of how the spy agency deserted its files and friends in a hasty exit from Vietnam.
Even though Snepp concealed the true names of CIA undercover operatives and their Vietnamese assets, and most experts agreed the book had no real classified information, Democratic President Jimmy Carter's Justice Department, abetted by a furious CIA, pursued Snepp with a vengeance worthy of a covert action operation.
In the end, the U.S. Supreme Court sided with the administration's argument that Snepp's violation of his employment agreement (not to publish anything without the CIA's approval) trumped his First Amendment rights.
Snepp subsequently published Irreparable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle Over Free Speech, which described how courts and prosecutors colluded to make sure they got the results they sought--primarily the seizure of Snepp's royalties and a warning shot at anyone else contemplating similar memoirs without permission. Ever since, the government has used the case to squelch dissent of all kinds.
"No court decision in our history," the columnist Nat Hentoff wrote at the time, "has so imperiled whistleblowers and thereby the ability of all citizens to find out about rampant ineptitude."
That was then. The atmosphere is arguably far more chilling now, with the current administration's Justice Department pursuing whistleblowers and journalists with heavy-handed espionage statutes.
Needless to say, Snepp, now an award-winning investigative producer for KNBC-TV in Los Angeles, has plenty to say about the government's pursuit of national security reporters and whistleblowers, the latest being self-proclaimed NSA secrets-leaker Edward Snowden.
On Wednesday I engaged in an email exchange with the ex-CIA man about Snowden, Bradley Manning, Julian Assange and reporters Glenn Greenwald of The Guardian and James Rosen of Fox News (who was described in an FBI affidavit as a co-conspirator of a State Department analyst who allegedly shared a classified report about North Korea with him).
Snepp started with a ominous quote from Rep. Peter King, an influential Republican in the House Homeland Security Committee, who suggested that reporters who received classified information from Snowden should be prosecuted.
"If they willingly knew that this was classified information, I think action should be taken, especially on something of this magnitude," King said.
The rest of Snepp's remarks follow below.
"If you go back and do a close read of the FBI affidavit targeting Fox News reporter James Rosen's Google logs you see precisely how the government might cobble together an espionage brief against a reporter who's simply teased out and reeled in a leaker's prohibited information.
The document asserts that the "reporter" in question--Rosen is not explicitly named--"had no security clearance and was not entitled [under the espionage statutes] to receive the information" he'd included in a website article. It describes his emails to the source as having the effect of?"soliciting?sensitive?material and/or?intelligence?information" and claims "probable cause to believe that he has committed or is committing a violation of [the espionage?statute] ... as an aider, abettor and/or co-conspirator" of the leaker.?
According to long-time students of this sort of thing, nearly all the basic ingredients of an espionage indictment are here, including the suggestion that the alleged perp Rosen helped engineer the wrongdoing (by soliciting the information), a concept that would distinguish his actions from normal?news-gathering and certainly from the act of publication.?
What's missing here is evidence of evil intent--to injure the United States. It's a big omission and, hypothetically, if indicted, the "reporter" might beat the rap on that grounds alone,?especially?because the Supreme Court requires a heavy burden of proof in cases involving traditionally protected activity like journalism.
But a scrivener who is more an advocate than neutral chronicler, and who has previously trafficked in vituperative criticism of U.S. policies, might have a harder row to hoe. Think Assange in the Manning case...
In any event, the very precision of the Rosen affidavit and the fact that it hits nearly all the right marks for an espionage rap suggests that somebody at the Justice Department is thinking hard about how to fit a reporter and his government source into drop slots?normally reserved for spies.
If nothing else, such a read would likely predispose a judge to look on the reporter's role with distaste, and the government's request for investigative latitude, with?commensurate?favor.
Not good. The embattled press needs all the judicial dispassion it can get.?
The only thing separating Snowden himself from legal immolation, I believe,?is the possible difficulty of extraditing him from [wherever] he [finally] lands abroad. Meanwhile, I don't think Glenn Greenwald and the Guardian are doing him or themselves any favors by hinting darkly that they have even more poison arrows in their quiver: It smacks of a tease for a tabloid?newscast and can only diminish?sympathy for their enterprise and aid the government in casting them as ill-intentioned conspirators with a yen for hyping what is deadly serious business, whatever your take on its justification.?
The?justification, as for all?whistle-blowing, lies in exposure of abuse. And so far, what I've learned is what I had every reason to suspect--that lax?supervision?plus public fear,?acquiescence?and indifference have?allowed government snooping to?metastasize?into a self-perpetuating tumor that is malignant mainly for its size and unpredictability.
Deliberate abuse I've yet to discern, but maybe that's because my experiences as spy, leaker and journalist have left me a bit cautious about reading?Armageddon?into?sudden flares in the night?
"Edward Snowden's revelations, coming in the midst of the Manning show trial, may intensify pressure on the administration to obliterate leakers and?big-foot reporters who help them.?
Even such First Amendment stalwarts as Floyd Abrams are drawing distinctions between Post-it operations like WikiLeaks and the mainstream press in terms of who deserves the most robust free-speech protection.?
The espionage laws, as several Supreme Court Justices acknowledged in the Pentagon Papers case, could be used to prosecute the press under certain conditions. That's never happened, but the courts and Congress have failed to clarify what those extenuating conditions might be.?The clear language of the statutes outlaws the passing of national defense information to anyone not entitled to receive it, and clearly anyone along the conveyor belt--whether leaker or middleman-journalist--could technically qualify for a hit. First Amendment experts tell me much would depend on the state of mind of an Assange or Greenwald, since the espionage statutes emphasize motive in calculating fault--as in, whether the peddler of secrets means to injure the U.S.?
Prosecutors might have a tough time imputing ill-intent to Greenwald, who generally keeps his ideological bent muted, but Assange is another matter. And if it can be shown that a journalist actually helped engineer a leak, or encouraged or abetted the theft of government documents, then the grounds for sanction would be that much greater.?
The administration has acknowledged that it is looking at various ways of dealing with leakers and their enablers in current circumstances. Laws covering criminal conspiracy or larceny might be adaptable. Not for nothing did the FBI affidavit concerning Fox Report James Rosen describe him as a potential co-conspirator in the illegal exposure of secret intelligence about North Korea.?
And don't forget that Nixon's prosecutors attempted to get an indictment against Anthony Russo, a Rand Employee who merely helped Daniel Ellsberg copy the Pentagon Papers. And New York Times journalist Neil Sheehan escaped Nixon's hammer for his role in the leak only because First Amendment lawyers managed to persuade a judge that the espionage laws do not mention, let alone criminalize, the publication of national defense information.?
Then, too, there is the precedent in my case handed down by the U.S. Supreme Court. It allows for civil law to be turned devastatingly against both leakers and "leakees" even when no secrets are compromised.
At no point in its suit against me did government lawyers accuse me of leaking any confidential information. My offense, as they saw it, was violating a non-disclosure agreement and an invisible "trust" by publishing a CIA memoir without agency clearance. Along the way, my lawyers discovered that Carter's Justice Department had considered suing Random House and 60 Minutes for helping me do my deed--and had refrained from going after them only to avoid riling the mainstream press and its powerful First Amendment lobby.?
Even so, the weapon is there, and since Manning, Snowden and James Rosen's source are all signatories of government non-disclosure agreements, it's not inconceivable that the government could impose a "constructive trust," effectively confiscating all the "ill-gotten gains" that their press collaborators made from assisting them. That could happen under U.S. v. Snepp without any showing of damage to the nation's security and without any allegation of bad intent, as would be required under espionage statutes.?
As for Snowden himself, he'd better rabbit as fast as he can because the prominence of his leaks and his defiant confession make it all but impossible for the administration to give him a pass of any sort. And indeed it shouldn't, for unless his culpability is sorted out in court, the resulting confusion could encourage some real crazies to go off the rails.?[Snowden told the South China Morning Post Wednesday he intended to fight his case from Hong Kong.]
And much as I hate to admit it as a leaker-turned-journalist, that's not a salutary prospect in an era of copycat terror and the instant amplification-by-Internet of the damage from truly dangerous leaks.?
That said, the best tradeoff for accepting the erosion of our privacy and First Amendment rights in the name of national security is effective government oversight of the strictures and agencies that would bind us--and that oversight has become a mockery. The bargain has broken down.
Tightening secrecy regulations, and paranoia about another 9/11, make our judicial and congressional watchdogs timid puppies in the face of increasingly opaque national security claims.
I know first-hand what that's like. My own case reached the U.S. Supreme Court amid the Iran hostage crisis, right after the Soviet invasion of Afghanistan, and the Court was stampeded into rendering its decision summarily without allowing my lawyers or the government's to argue the merits of legal theories that severely punished non-secret disclosures.
What kind of consideration could one expect from the courts for Snowden, who admitted to ripping the lid off of some our most heavily classified secrets? Probably even less consideration than the secret FISA court gives to rejecting government applications for surveillance. Only 11 such applications, out of nearly 40,000, have been turned down since 1979--at least if you can believe leaks about its otherwise invisible, inscrutable decision-making. ?
The lack of oversight by the courts or Congress will doubtless tempt other leakers to the fore, no matter what punishment awaits them.
As an old spook and leaker who got his concerns about botched intelligence and betrayal of allies on the record--and in people's faces--without revealing any secrets, I can only hope that this generation of outraged insiders and the complicit press aren't tempted to burn down the village in order to save it. ?
Extremism in the name of transparency and righteous reform often has the unintended first consequence of hardening the worst instincts of of those in government who can make changes for the better.?
Jeff Stein, Intelligence Columnist : [ Click here to
contact Jeff directly ] Bronze Star recipient, author, and investigative reporter, specializing in U.S. intelligence, defense, and foreign policy, Jeff Stein. Stein was born in Philadelphia but grew up in New England, moving with his family to Maine in 1954. After attending school in Providence, Rhode Island, he moved to Hingham, Massachusetts, where he graduated from high school in 1962. Following high school, he... (more...)