It Isn't Fair
He deserves to live in this country in as much peace as Orlando Bosch did, and with as many career opportunities as have been afforded Elliott Abrams and Ollie North, who did not release information for free but, rather, some missiles to terror states for money. – Blogger Charles Pierce, arguing that the U.S. should bring no charges against Edward Snowden, Friday
I suddenly had the thought that Snowden is the black guy caught for smoking pot while Cheney and his Bush, Rumsfeld, and Wolfowitz are the white pot smoking college students. Who of the above killed more people and who of the above faces the most severe penalties? I don't condone Snowden; I sure as hell don't think he should suffer worse than those guys. – Reality Chex Contributor Citizen 625, Saturday
“It isn't fair.” Every toddler has said it. If that toddler is not fully socialized, he will keep on making the same complaint all his life, insisting that he should have more as others have less. He will become a conservative. If, on the other hand, he is properly integrated into the community, he will be able to empathize with others who, for one reason or another, do not receive equal treatment. He will become a liberal who wishes to live in a society governed by laws and rules that treat everyone with impartiality and fairness.
“It isn't fair” is the sentiment that underlies Charles Pierce's and Citizen 625's analogies. I get that. I feel it myself. But the "reasoning" is facile and illogical. As I wrote in response to Pierce's post, “This is the 'two wrongs make a right' fallacy.... 'George Zimmerman beat a murder rap so every murderer should get off scot-free.'” Friday, several contributors elaborated on my comment. Nonetheless, we did not dissuade Citizen 625 from making essentially the same argument Pierce made.
Pierce's examples of bad guys who got away with murder are particularly inapt. Bosch was never convicted of the major crime of which he was accused, he denied responsibility, and the Venezuelan government held him in jail for four years awaiting trial. Abrams is Pierce's best case, but it should be remembered that Abrams, like North, was working in and with the government rather than against it. Bush I pardoned Abrams and Bush II gave Abrams a job because Abrams was playing on their team. North was fired (by Reagan), prosecuted and convicted. He received a suspended sentence, probation, a substantial fine and a community service stint, some of which he did before ACLU lawyers got his conviction vacated. I don't feel sorry for any of these guys, but North did pay a price for his perjury and destruction of evidence and Bosch paid a price, too.
Citizen 625's analogies, though faulty for the same reason as Pierce's, are at least marginally better than Pierce's. It was, after all, the same Justice Department – Obama's – that decided not to prosecute Bush, Cheney, Rumsfeld and Wolfowitz but has brought charges against Snowden. Yet again the situations are not analogous. Not only were Citizen 625's bad guys all working on the side of the U.S. government, they were the government. In addition, their attack on Iraq had overwhelming Congressional support. Would it be possible to find these guys individually guilty of war crimes? Maybe. But they had a helluva a lot of help. Are you going to charge Hillary Clinton, too? What about John Kerry? He was for it before he was against it, ya know. Better toss in most of the Bush administration's senior national security staff. And definitely George Slam-Dunk Tenet. Jailing (or executing!) American leaders who take the nation into ill-advised wars and who violate human rights in carrying out those wars would arguably lead to untenable governmental instability. There are, after all, good arguments against almost every war effort. For strictly pragmatic reasons, Obama's DOJ was probably right in not prosecuting – or threatening to prosecute – officials of the prior administration.
The war in Iraq -- stupid, unjustified, outrageous though it was -- was a lawful political action, sanctioned and carried out by those who had the Constitutional power and political backing to take the country to war. Ed Snowden does not enjoy that cover of law.
Is it “fair” that Dick Cheney spent Christmas in Wyoming shilling for his despicable daughter while Ed Snowden spent Christmas in Russia trying to get the hell out of there? Probably not. But our system of government is designed to protect Cheney and to prosecute Snowden. Cheney knew that when he did whatever he did that might have been war crimes. Snowden knew that, too, when he did what he did. Their situations are not analogous.
But even if their crimes were analogous, even if they were just alike, one systemic failure or miscarriage of justice does not justify another. Failures of the past certainly do not mandate that the system fail in perpetuity, as both Pierce and Citizen 625 suggest. Even when the relative outcomes are not fair.
P.S. Do not comment on this post, please, unless you have read Fred Kaplan on clemency for Snowden. Also, kindly spare us from Reductio ad Hitlerum in your commentary. Thank you.
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Reader Comments (12)
I have argued on Snowden's behalf on a number of occasions on this site. And I see a certain logic to your point, CW, about how it is that the conduct of others, and the punishment (or lack thereof) that they received should not be used as justification for not punishing someone who has committed crimes.
So why do you go on to make the same case for not prosecuting people guilty of war crimes in Iraq? Because so many were complicit we shouldn't prosecute?
Our system of government is NOT designed to protect people like Dick Cheney. Our system of government was created with the idea that all people were equal before the law.
I'm willing to be convinced that Snowden may well, indeed, deserve to be prosecuted, and the Kaplan piece you cited did a lot to move toward that way of thinking. But please don't try and tell me that others should not be prosecuted simply because they were working for our government when committed their crimes, or because so many were complicit. Being an elected official (or an appointee of an elected official) does not place you above the law.
If all the people you named committed crimes they should be prosecuted.
I agree with CW, Kaplan, Diane, and PD Pepe re: Snowden. If he had left it at domestic surveillance, I'd be willing to give him a break. But no, he had to expose secrets that didn't have anything to do with domesic surveillance. In fact, it may have exposed the US to danger. Snowden was reckless. I wondered the same thing as Kaplan. Why Russia? Why China? Neither one is a model of human rights.
Noodge, i agree that Bush and Cheney launched an illegal war, but as CW pointed out, if you wanted to prosecute them, that would be an extemely knotty legal problem. The case could drag on for years. That said, this does not mean Snowden should get off scot free. The two cases aren't analogous. Recently, there have been several false analogies.
"Two wrongs do not make right" probably assumes unrelated events. In this case the second wrong is caused by the first. Since the former cannot be prosecuted (too difficult, everyone in power involved, etc) then the later wrong (Snowden leaking) is justified, even if illegal.
As far as Snowden's attention seeking: the man has traded HI for Moscow balmy climate. Even if it were not his original destination, he is hunted, and this causes strange bed fellows.
On a personal note, as former Soviet Union and current US citizen, I would trust American government maybe 1% more the Russian government, and many many times less than I would trust the American people. Just like Snowden is doing very smartly with people from multiple countries.
@Noodge: I think you're wrong, but I don't know that you're wrong. If you're right, you're going to have to do better than make a blanket claim that Cheney committed war crimes. What did he do that clearly violated U.S. law & when did he do it? In other words, what did he do that was prosecutable?
I think we agree that Cheney is a sociopath who doesn't give a shit whom he runs over. But you can't jail Cheney because thousands of innocent Iraqis were killed in a stupid war, a stupid war which he instigated & endorsed on trumped-up premises. Our system is not designed, nor should it be, to prosecute people -- even leaders -- on the general grounds that they're supreme assholes who make colossal mistakes that cost the lives of innocent people.
Congress explicitly gave the Bush administration the power to take military action against Iraq. There's nothing in the Constitution or in the law (of which I'm aware) that says our wars must be just wars.
I think what liberals are generally arguing is that Cheney was "elected" by the Committee of Five against the expressed will of the electorate, then went about engineering a war of opportunity on negligible grounds, so he should be prosecuted for -- something. I feel the same way; however, I am unaware of any logical means of justifying my feelings.
So do tell.
Marie
Re: Just wars waged by the US. The US Army flag has so many campaign streamers that it takes a strong color bearer to carry it in a brisk breeze. A close look at the streamers shows many morally questionable campaigns. Here's US Grant on the Mexican War: "one of the most unjust ever waged by a stronger against a weaker nation. It was an instance of a republic following the bad example of European monarchies, in not considering justice in their desire to acquire additional territory." Sound familiar? A German soldier told someone I know: "You've been in more wars than we have. When you can't find someone else to fight, you fight with each other!"
Kaplan's excellent piece makes the minor, now prevalent mistake, IMHO, of characterizing Snowden as a wistleblower. He was an indiscriminate leaker of stolen documents. So was Ellsberg a leaker of stolen documents, but his leak was focused, only exposed the history of back room dealings, did not endanger anyone, and he stayed to face the music. As Marie points out, if Snowden had only leaked the information that the NSA, using enterprise contractors, was mining private domestic communications on a massive scale without probable cause, and brought to our attention that the NSA was itself massive beyond reason, and let the feds take their best shot (legal, that is) at him, the positive effects of his leaks would likely be just as firm and he would be, like Ellsberg a hero. I imagine most of the RC community has seen "The Fog of War" by Errol Morris; should be de rigueur for high school civics. Oh, I forgot, they don't offer that any more.
Re: Fair is for weather and fare is for buses. Hey, if life was fair we all would be living in shacks with the running water: if there was running water, coming from the town square. If life was fair we all would be walking village paths that may or may not be seeded with land mines.
Fair is a fairy tale and all of us here in this country should know we are the icing (or frosting depending on your local) on the global cake.
There is nothing about this country that screams "fair" to me.
I do not agree with the "fair" defense in the least. Or to repeat myself from past postings; "Do the crime, be ready to do the time."
So Snowden is in jail for years, great. How does that change all the actions of our shadow government? Ed goes to the big house; how about the Director of Spying who lies to Congress under oath about his agency's collection of data? Which would you rather have incarcerated? Two wrongs don't make a right, OK, which wrong do you make right?
The country is changing everyday, we are morphing into our forefather's worst fears; a weird combo of no community and no independence; soulless consumerism based on greed.
So, hell, fry Ed Snowden; but what he exposed is the harbinger of things to come.
@Barbarossa: That German soldier sure didn't know much about German history. Just to cover the period where there were colonies established by Europeans in North America, Germans engaged in the Thirty Years' War, the War of Spanish Succession, the War of Austrian Succession, the Silesian Wars, the Seven Years' War, the Napoleonic Wars, several wars of unification (the war against Denmark, the Austro-Prussian War & the Franco-Prussian War), World War I & World War II. Quite a number of these wars were centered on Germans "fighting with each other."
Marie
@JJG: You asked, "... how about the Director of Spying who lies to Congress under oath about his agency's collection of data? Which would you rather have incarcerated?"
I think if you read the whole story, there is a case for exonerating Clapper. See, for instance, this and this and this. It is notable that Wyden -- who asked the question and has an abiding interest in dismantling the surveillance state -- has not demanded Clapper's head.
I don't happen to think Clapper is very competent, and my guess is that there are a number of people capable of doing a better job than he. Should he share a prison cell with Ed Snowden, as Rand Paul suggests? I don't think that could happen because I think Clapper would easily beat a perjury rap. If you've ever testified in court or elsewhere, even if you're experienced at it as Clapper is, you know that it is pretty easy to actually misunderstand a question, especially one where the questioner precedes it with a little speech on a related topic (Senators always do this). When you read Wyden's full question, it's easy to believe that Clapper could have been concentrating on & responding to the prologue -- as he claimed -- and missed the actual question -- the only part that usually gets repeated in the press.
So, in answer to your question, I'd rather see someone in jail who took a job for the purpose of pilfering millions of classified documents & arranging for their publication in news outlets throughout the world than someone who might have lied to Congress in the one instance we know of, and whose best answer in that instance probably would have been, "I really couldn't say."
One of the things you figure out during the course of a lifetime as long as mine is that things are seldom quite as simple and straightforward as we would like or first assume. It is, however, the complexities that make that life interesting.
Marie
JJG, minor, minor note. Clapper wasn't under oath. Feinstein generally refuses to put administration officials under oath for SSCI. It's not perjury, but False Statements under USC 18. It came up on the Turley blog today.
I really dislike much of Turley's work - most especially his unending hit pieces on Obama. But Marie explained something some time ago. Turley is an advocate and so one shouldn't expect the Truth. (Hope I didn't mangle that too much, Marie.)
As required, I've read Kaplan's article and learned nothing new.
Snowden reveals NSA eavesdropping on Taliban? bin Laden evaded US since 2001 by eschewing all electronic communications. No news to him. Snowden reveals NSA reading Iran emails? After Stuxnet ravages Iran's nuclear facilities what Iranian would assume any electronic media would be secure? Snowden reveals NSA hacking Chinese computers. Must be about as newsworthy to the Chinese as the news that they along with the Russians, are hacking US computers. The real, jaw dropping hacking news I've learned was about US listening in on the one electronic network the Taliban thought was secure and which the Taliban leaders world-wide used to communicte with each other to coordinate and plan. That fact was revealed by the US government. If you believe that "everybody does it" then I fail to see what possible objection there might be to another body stating those selfevident facts. Like someone at a party being censored for saying "She's not wearing panties!!"
In defence of Clapper , Marie references an Andy Greenberg article of 07/02/13 in Forbes about Clapper's mea culpa 3 months after the fact. I would reference you to an Andy Greenberg article of 12/16/2013 in Forbes about Snowden's character/abilities.
Many feel Snowden should have followed procedure and reported his concerns to his superiors. How did that work for Binney/Drake/Wiebe/Loomis/Roark et al? Most will be asking who? Or maybe Snowden should have leaked to Wyden who would have done something. A Ryan Lizza article in the New Yorker last year about the NSA and Wyden showed that under the present rules Wyden is ineffective if not impotent. See also Clapper/Wyden. To maintain his position within the security community, which he seems to value for some reason, Wyden would have had to surrender any Snowden documentation he received.
Snowden is condemned for taking refuge in China/Russia but what are his options? Greenwald's husband's (?) experience having his plane denied air rights and turned back by Spain shows how vulnerable international travel is to interdiction. The snatching of al Qaida suspects from the streets of Europe shows that only on the territory of America's foes does he have any hope of safety.
I think that the question of whistle-blower or thief is being decided on the personality of the observer. Conservatives see the NSA outing as a betrayal of the nation that must be punished. Liberals see an NSA run amok trampling on civil liberties in the pursuit of an ephemeral quest of absolute security. To me his most important disclosures concern not the war on terror but the war on allies. I have seen no evidence that the NSA has discovered anything that has not been revealed by other, less invasive, more conventional sluething. I think Snowden has revealed the machinations of a mindless electronic vacuum run amok, should be granted whistleblower status and given a slap on the wrist. Say, a week in Guantanamo in addition to the 3 years at trial. Then there are those who feel that this outrageously grandiose egotist has profited mightily psycologically and deserves life in prison.. In the middle are those who would grant him whistleblower status if only he would submit to the martyrdom of 30+ years in prison.
Let me start at the beginning and say "thanks" for taking time to comment CW et al. Too much about "discussion" has to do with winning an argument. I want to better understand this Snowden thing.
I have a better life because of the rule of law and if I think that and extrapolate from the notion "elections have consequences" I have a couple of takeaways. The Five Supreme Jackasses who started us on the Dick and George show are the denouement of Madison, Jefferson and Hamilton and our noble experiment. Yes, sometimes life is simply not fair. Being fairly well traveled, I know that where I live is one of the best places in the world and that is the US of A.
Kaplan states his point of view well, as does CW. A system, as imperfect as it is that elected Dick and his George president can figure out a punishment less severe than death for Snowden for his scheming, illegal dissent is my opinion. Anarchy, authoritarianism, centralized power and the advancement of the one percent at the expense of the majority are the wolves at the door. We, whether through complacency, ineptness, stupidity, or simple human failings are responsible for our current system of government and the individuals who populate government.