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A Favor From Mr. Holder

The Snowden Effect

by CHRISTOPHER BRAUCHLI

Whistling aloud to bear his courage up.

Robert Blair, The Grave (1743)
                          

For those of you who have been away from news reports for the  last few months,  herewith a primer on a now famous individual who has been in the news with much frequency-Edward Snowden.

The first thing you need to know about Mr. Snowden is that he has had an effect on the media and Congress that none of the people who work in either of those place could hope to have had.  The second is that he has permitted the United States to implicitly demonstrate its moral superiority to places such as Russia.  First things first.

But for (as lawyers are wont to say) Mr. Snowden, none of the discussion that has consumed millions if not billions of words during the last two months would have taken place.  But for Mr. Snowden the House of Representatives in the United States Congress would have continued doing nothing other than taking the 39th, 40th and 41st votes on whether or not to repeal Health Care.  Thanks to Mr. Snowden those votes have been postponed.  Instead, in an unusual moment of bipartisanship 94 Republicans and 111 Democrats voted to defund the National Security Agency’s telephone data collection program.  It failed by seven votes.  Notwithstanding that defeat, two congressmen have begun preparing a bill that would curb telephone surveillance.

But for Mr. Snowden there would have been no discussion of the FISA court.  We would not have learned that ten of the 11 judges assigned to the FISA court by Chief Justice John Roberts from among all federal judges, are Republicans appointed to the bench by Republicans. But for Mr. Snowden we would not have learned that of 1856 requests to the FISA court for secret surveillance none was denied by the FISA court.  But for Mr. Snowden there would be no discussion at the national level of the fact that there is no one to represent the public when the Justice Department asks the FISA court for permission to conduct secret surveillance.

Of course Mr. Snowden didn’t give us all that information.  He was just the one who forced us to have the discussion. Before he spoke all we had were a couple of senators who kept saying that if we knew all the bad things the government was doing we’d be really upset but because the bad things were highly confidential they were not at liberty to disclose them.  It was Mr. Snowden who caused the discussion to occur with the result we may be protected from some of the abuses that the Senators could not disclose or prevent.

The administration wants Mr. Snowden returned to the United States so that he can be tried for having enabled the American people to have an honest discussion about what their government has been doing. The administration has one problem.  Mr. Snowden is in the airport in Russia and Russia hasn’t decided what it wants to do with Mr. Snowden.  The U.S. has asked Russia to transfer Mr. Snowden to the United States.  It didn’t ask Russia to extradite him since the U.S. has no extradition treaty with Russia.  In a friendly letter asking for Mr. Snowden’s transfer, Mr. Holder promised that the United States would not seek the death penalty for Mr. Snowden even if a jury found that his enabling the country to have a discussion about what its government was secretly doing would otherwise make him eligible for the death penalty.  Mr. Holder may have felt it necessary to make that promise since the Russians probably know that the U.S. government killed Anwar al-Awlaki, an American citizen, without even giving him a trial and two weeks later, quite by accident, killed his son.  The Russians who are famous for having a terrific justice system that, among other things, conducts trials without letting defendants put on any evidence, did not want to put Mr. Snowden in the arms of a country that does not follow the rule of law.

Mr. Holder also felt it necessary to reassure the Russians that Mr. Snowden would not be tortured if he were returned to the United States.  As Mr. Holder said in his letter to Vladimirovich Konovalov, the Russian Minister of Justice: “Torture is unlawful in the United States.” He probably felt it necessary to say that since everyone knows that the U.S. has been force-feeding some of the inmates in Guantanamo that some people say is like torture. The administration says it’s doing the inmates a favor because it keeps them alive so they can appreciate the fact that there is no prospect of them ever being tried or released which is, of course, the reason they are on a hunger strike in the first place. Russia may also know that Bradley Manning was kept in solitary confinement for 11 months while awaiting trial and that Juan Mendez, the UN special rapporteur on torture concluded that that was cruel and inhumane treatment and might have constituted torture.  It may (or may not) be safe to assume that based on Mr. Holder’s representation, Mr. Snowden would not be kept in solitary confinement.

But for Mr.  Snowden . . . .

Christopher Brauchli is a lawyer living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.