What Kind of Whistleblower Would You Be?

I’m not sure what to think about this Snowden guy.  I tend to think the government certainly has an obligation to hold secrets when it comes to national security and yet obviously the American people deserve to know, and I think participate in, the process by which we give up so many of our legal rights in order to acquire that sense of security.

Diane Feinstein thinks he should be tried for treason and John Boehner calls him a traitor.

Political opinion in the US was split with some members of Congress calling for the immediate extradition from Hong Kong of the whistleblower, Edward Snowden. But other senior politicians in both main parties questioned whether US surveillance practices had gone too far.

Dianne Feinstein, chairman of the national intelligence committee, has ordered the NSA to review how it limits the exposure of Americans to government surveillance. But she made clear her disapproval of Snowden. “What he did was an act of treason,” she said.

House Speaker John Boehner defended the NSA programs and their congressional oversight, saying he had been briefed on the programs and that Americans were not “snooped on” unless they communicated with a terrorist in another country.

“He’s a traitor,” Boehner said of Snowden in an interview with ABC News. “The disclosure of this information puts Americans at risk, it shows our adversaries what our capabilities are, and it’s a giant violation of the law.”

Daniel Ellsberg believes Snowden’s leak is the most important example of whistleblowing in history.

In my estimation, there has not been in American history a more important leak than  Edward Snowden’s release of NSA material – and that definitely includes  the Pentagon Papers 40 years ago. Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an “executive coup” against the US constitution.

For the president then to say that there is judicial oversight is nonsense – as is the alleged oversight function of the intelligence committees in Congress. Not for the first time – as with issues of torture, kidnapping, detention, assassination by drones and death squads –they have shown themselves to be thoroughly co-opted by the agencies they supposedly monitor. They are also black holes for information that the public needs to know.

Ellsberg seems to think this event will give Americans both the incentive and proof  we need to rise up against this “surveillance state”.   Ha, based on the polling I’ve seen this week and comments from both government officials and public forums I’ve been reading, most people don’t really care that much or simply accept it’s the trade off  for being safe.

And it seems to me we have two different kinds of justice being handed out for whistleblowers.  Thanks to Dodd/Frank (don’t get me wrong, I know it’s a crappy bill) the SEC has newly enacted protections for financial whistleblowers and the government has reaped the benefits to the tune of   millions of dollars.

In just its first year, the whistle­blower program already has proven to be a valuable tool in helping us ferret out financial fraud,” then-SEC Chairman Mary L. Schapiro said in November 2012. “When insiders provide us with high-quality road maps of fraudulent wrongdoing, it reduces the length of time we spend investigating and saves the agency substantial resources.”

The SEC’s Investor Protection Fund awarded the Commission’s first Whistleblower Award Program recipient in 2012, but the case and individual haven’t been made public. The Fund represents monetary sanctions received from settlements of SEC cases, including penalties, disgorgement, and interest. The balance at the end of fiscal 2012 was $453 million.

And on the opposite end of the spectrum Obama appears to undermine his own support of protections for whistleblowers, at least in the area of National Security.

The federal appeals court granted another hearing on May 24, and the Obama administration rushed out a memo asking the Director of National Intelligence and the Office of Personnel Management to quickly come up with a litmus test for deciding which federal positions can be classified as being “sensitive,” citing a 2010 OPM proposal that aimed to dramatically expand the number of national security employees.

Whistleblower advocates say the court ruling and the president’s memo spell a major rewiring of the Whistleblower Protection Enhancement Act. “It’s not that OPM and DOJ are arguing that whistleblowers in sensitive positions shouldn’t have access to protections. It’s an unintended consequence that they have not tried to prevent,” says Angela Canterbury, public policy director at the Project on Government Oversight, where I used to work. “The Obama administration is undermining the same protections they [formerly] supported.

There are at least five whistleblowers who’ve come up against the heavy hand of the Obama Administration via the DOJ recently.

The Obama administration has waged a war on government whistleblowers. So here are 5 whistleblowers who have been under attack by a president who once said that official whistleblowers were “often the best source of information about waste, fraud, and abuse in government.

Check out the Thomas Drake case:

4. Thomas Drake

A former executive at the National Security Agency, Thomas Drake exposed details about the agency’s Trailblazer Project. For this, he was charged under the Espionage Act, though the government’s case against him spectacularly failed.

Drake became concerned about the Trailblazer Project’s cost–at $1 billion, it was way more than the NSA should have been paying for a program they could have instituted in-house. He was also concerned it would violate the privacy of Americans. But Trailblazer, which was supposed to analyze intercepted communications, was chosen to be the NSA’s vehicle for surveillance anyway. Drake disclosed details about the NSA’s wastefulness to a Baltimore Sun reporter.

The government initially threw the book at him, but their case collapsed. As Marcy Wheeler explained in The Nation: “The Department of Justice had been pursuing Drake for alleged violations of the Espionage Act that might have sent him to prison for up to 35 years. But the government withdrew the evidence supporting several of the central charges after a judge ruled Drake would not be able to defend himself unless the government revealed details about one of the National Security Agency’s telecommunications collection programs.” Drake was eventually convicted on the misdemeanor charge of exceeding authorized use of a computer.

I’m really curious what all of you think of the whistleblower issue in particular, but of course I’m also wondering if anyone thinks there’s a reverse of the surveillance state possible.  Is surveillance state too strong of a descriptive?  Do you think Obama is really to blame or is it just the result of an overzealous government at all levels since 9/11?

42 Responses

  1. In the meantime Rand Paul has different ideas than most of the leadership of Congress.

    The bane of Big Government, Sen. Rand Paul (R-Ky.), is inviting Americans to join him in a class-action lawsuit to stop what he says are unconstitutional invasions of privacy by the National Security Agency. “I’m going to be seeing if I can challenge this at the Supreme Court level,” he declared Sunday on Fox News.

    Who would win Paul and 10 Million Citizens v. NSA? Paul’s first problem would be a lack of standing to sue in federal court. It’s not enough to claim that the government is threatening your rights; applicable precedent says you have to show a “concrete and particularized” violation of those rights or, at least, an imminent one.

    http://www.washingtonpost.com/opinions/charles-lane-rand-pauls-misguided-case-against-the-nsa/2013/06/10/b1a07f1a-d1ef-11e2-9f1a-1a7cdee20287_story.html?tid=pm_opinions_pop

    Note: Figured I’d bring in a WaPo link while I still can.

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  2. To be honest, I have not followed this case all that closely, but is this what is going on? The US has the phone numbers of higher ups in AQ, and is looking at phone calls that go to those numbers? If so, then it really isn’t all that bothersome to me, as long as that is as far as it goes.

    If obama is using this stuff for political ends, then that is a different story.

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  3. This is a great topic within a topic, with many permutations.

    Suppose I think the security state is overblown and out of control, with its myriad contractors and black budget and maintenance of permanent records that touch just about everyone.

    And suppose I think that a civilian, military, or contractor’s employee who has been sworn to secrecy has a duty to keep the secret, if it was a lawful secret.

    Further, suppose that the employee believes that by violating his pledge he can contribute to the greater good.

    What do I think that employee should do? What do I think should be done with him after the fact?

    Here, the overblown security state was performing lawful acts. So my first choice would be to “change the law.”

    Did I know the range of the problem without this whistleblower? I think I knew the general outlines of it and have been opposed to it since the inception of the Patriot Act.

    Did the whistleblower do probable harm here? I don’t know.

    I think the whistleblower should be prosecuted, and that he should willingly face the prosecution and tell his story, if he thinks he was doing good and not harm.

    Rand Paul can help him with his defense.

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    • Mark:

      I think the whistleblower should be prosecuted, and that he should willingly face the prosecution and tell his story, if he thinks he was doing good and not harm.

      What is your thinking on jury nullification?

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      • What is your thinking on jury nullification?

        I think it is an extreme response that I would not endorse except in extreme circumstances, like the Zenger case, of course.

        I think that an indictment here for multiple counts, running from treason down to lightweight security violations, would give the jury an opportunity to pick an appropriate verdict, if they can get a sense of his mental state and of the harm done.

        However, we know that trial is unlikely to occur.

        And I think his running away undermines his position greatly.

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  4. From the interview I read Snowden expects to be prosecuted. He believes what he did was in the interest of transparency according to the interview and fully expects to be held accountable. He’s an interesting guy in a lot of ways if his words can be believed.

    Brent, according to some reports the data collection of phone and internet records goes beyond capturing or identifying a foreign threat. I don’t really see how the information could be used for political gain by Obama and haven’t read anything along those lines……………….yet.

    I really think the whole whistle blower angle is fascinating.

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    • Lulu, I believe there is enough info that can be culled from the material that a LBJ or a RMN would use it to define enemies. Not enemies of the state, but political opponents. One possible partial safeguard would be to destroy the records after X months.

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  5. Clapper on lying to Wyden:

    ““I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no,’” Clapper told NBC News on Sunday.”

    Uh, ok, can I try that with my wife after I’ve been out all night?

    http://hotair.com/archives/2013/06/11/wyden-i-gave-clapper-that-question-a-day-in-advance-of-his-untruthful-answer/

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  6. Mark

    Wouldn’t Obama’s minions have to have actual access to the data and know how to use it. Maybe they do, but I think NSA is probably more secure than that. And wouldn’t they (the minions) also face the same kind of prosecution that Snowden probably faces?

    I’m probably being naive here, but I haven’t read anywhere that anyone is suggesting this have you?

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  7. I’ve never heard of this guy, but he comes out strongly in favor of strengthening whistle blower protections even in the national security arena. I don’t know how much of this is an exaggeration or how much is truth. There’s so much information to cull through it’s unbelievable. I wish I were a better writer though, I’d totally write fictional “whistleblower stories”…………….the hell with fantasy.

    We know that the NSA has many domestic-surveillance and data-mining programs with codenames like Trailblazer, Stellar Wind, and Ragtime — deliberately using different codenames for similar programs to stymie oversight and conceal what’s really going on. We know that the NSA is building an enormous computer facility in Utah to store all this data, as well as faster computer networks to process it all. We know the U.S. Cyber Command employs 4,000 people.

    We know that the DHS is also collecting a massive amount of data on people, and that local police departments are running “fusion centers” to collect and analyze this data, and covering up its failures. This is all part of the militarization of the police.

    The U.S. government is on a secrecy binge. It overclassifies more information than ever. And we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.

    Knowing how the government spies on us is important. Not only because so much of it is illegal — or, to be as charitable as possible, based on novel interpretations of the law — but because we have a right to know. Democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that. That means knowing what our government is doing to us, in our name. That means knowing that the government is operating within the constraints of the law. Otherwise, we’re living in a police state.

    We need whistle-blowers.

    http://www.schneier.com/blog/archives/2013/06/government_secr.html

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  8. I’m too cynical to be a whistleblower but I’m too much of a Boy Scout to get involved in something shady. The moral hazard in my industry is kick-backs from contractors. I just don’t have the nerve to hint for those sorts of things.

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  9. My husband was a whistleblower at a subsidiary of Grano Steel years ago-everyone lost their job-but when the dust settled a few months later, he was the only one from the original group who was hired back.

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  10. Lulu, it only takes the POTUS appointing a henchman at NSA, or CIA, or AG. That is how RMN did it, through his AG, John Mitchell, when he ran at least one million unwarranted wiretaps.

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    • mark:

      …when he ran at least 1 million wiretaps.

      Not to defend Nixon, but that would equate to roughly 450 wiretaps a day for each day he was in office. Is that possible?

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  11. True Mark. I’m trying not to be cynical. Did you watch the watergate hearings? I remember the drama even at 22.

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  12. Those hearings were a terrible time for me. I remember them well.

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  13. They were riveting though.

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  14. Is that possible? Yep.

    While his wiki biography doesn’t mention the millon number, it does lay out what he thought an AG could get away with.

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    • Mark:

      Is that possible? Yep.

      Not that it really matters, but count me as skeptical. He was in office for 2,027 days, so that comes out to 493 wiretaps per day. That in itself seems highly unlikely. But if each wiretap produced only 1 hour of conversation, that would be 1,000,000 hours of conversations that had to be reviewed. With 48,648 hours in his less than 6 years in office, that would require 20 agents listening to conversations 24 hours a day in real time for every day throughout his full term in order for those conversations to have been monitored. Not to mention the man hours needed to actually put that many taps in place, which I am not familiar with but I imagine in the pre-digital age was not insubstantial.

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      • [million taps] I could be wrong. I didn’t count them.

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        • Mark:

          I could be wrong. I didn’t count them.

          My totally uninformed guess would be something below 1,000.

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        • My totally uninformed guess would be something below 1,000.

          That would be a totally uninformed guess, indeed.

          Let me add that “The Mitchell Plan” engaged or coerced the cooperation of the telco and was warrantless. It concentrated on attorneys and litigants in federal court who were opposed by the AG’s office – both in civil and criminal affairs. This was so widespread that he was invited to speak to the ABA National Convention about it. I went to that one with a local judge.

          He was outrageous.

          There were independent warrantless initiatives to his but authorized by him, that came out of FBI and other divisions of Justice. these were the ones targeted at ant-war leaders, civil rights leaders, Congresscritters, etc. You could be thinking only of these taps where agents were actively listening, as opposed to the transcribed materials from the telco. Did they listen to every recording? I don’t know. Probably not. But when I was one of the counsel for a neighborhood organization attempting to avoid busing, the [appalled] AUSA admitted to me that he had transcripts of all of our conversations among the lawyers and clients.

          A million intrusions were a common estimate then.

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        • Mark:

          That would be a totally uninformed guess, indeed.

          Well, I probably shouldn’t have said “totally”. It was based on this, which was the only reference to a number of wiretaps that I could find:

          Eventually, future FBI director William Ruckelshaus will reveal that at least 17 wiretaps are ordered between 1969 and 1971.

          I kind of figured that increasing that by a factor of 50 for the upper limit seemed reasonable. I suspect that if Nixon was illegally wiretapping even tens of thousands of people, I would be able to find some reference to it out there in the ether. But maybe not. As I said, definitely a guess. If you have info on it, I would be interested.

          Edit: I see now you have updated your post with more info. Thanks.

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        • Scott- I have seen more recent estimates of 250,000 unlawful taps, then. Basically, at the fed level under Mitchell, these were recorded by telco and sent to feds.

          As I wrote below, this was widespread, and there were multiple “programs”.

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        • Mark:

          I am unfamiliar with “The Mitchell Plan”. I googled it but came up empty. What was it?

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        • From the Time Magazine archives:

          When he was sworn in as Attorney General more than three years ago, John Mitchell vowed that a major goal during his tenure at the Justice Department would be a systematic crackdown on organized crime and the narcotics traffic. Since then, the Government has made an impressive attempt to keep Mitchell’s promise, bringing indictments against 4,934 supposed evildoers since 1969. But some of that accomplishment will apparently be undone because Mitchell failed to observe the law governing the authorization of wiretaps. As many as 1,000 defendants could have their cases thrown out of court as a result of improper procedures in the Attorney General’s office. Says one Justice Department official: ‘This is the biggest goof-up we’ve ever had.’

          I find an estimate of wiretaps in the high five digits very plausible. The number of politically motivated taps were probably very small but likely an order of magnitude or two higher than the 17 used for the Watergate indictment.

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        • yello:

          I find an estimate of wiretaps in the high five digits very plausible.

          I confess I was only considering politically motivated taps. Based on the Time article and what Mark says, that seems plausible.

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        • It was a phrase that I think was used by this man:

          http://law.duke.edu/fac/tigar/

          It described one set of eavesdrops, while the Hoover Plan and another one I don’t recall described two others. I think around 1973 these were the names used by govt witnesses in congressional hearings, but i don’t have time to look.

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  15. Mark, not that I approve of what Manning did, because I don’t, but it’s pretty difficult to willingly face the prosecution and tell his story, if he thinks he was doing good and not harm when the deck is stacked against you.

    FORT MEADE, Md.—The military trial of Bradley Manning is a judicial lynching. The government has effectively muzzled the defense team. The Army private first class is not permitted to argue that he had a moral and legal obligation under international law to make public the war crimes he uncovered. The documents that detail the crimes, torture and killing that Manning revealed, because they are classified, have been barred from discussion in court, effectively removing the fundamental issue of war crimes from the trial. Manning is forbidden by the court to challenge the government’s unverified assertion that he harmed national security. Lead defense attorney David E. Coombs said during pretrial proceedings that the judge’s refusal to permit information on the lack of actual damage from the leaks would “eliminate a viable defense, and cut defense off at the knees.” And this is what has happened.

    Manning is also barred from presenting to the court his motives for giving the website WikiLeaks hundreds of thousands of classified diplomatic cables, war logs from Afghanistan and Iraq, and videos. The issues of his motives and potentially harming national security can be raised only at the time of sentencing, but by then it will be too late.

    http://www.rawstory.com/rs/2013/06/11/bradley-mannings-trial-is-no-more-than-a-judicial-lynching/#sthash.Pvic2CbJ.dpuf

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    • The issues are clearly defined at a Court Martial and Manning knew on the front end he would only be able to use his “defense” in mitigation. I have no sympathy for his claim his defense has been cut off at the knee. I do think the fact he was mistreated pretrial should also be considered at his sentencing.

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  16. Mark, I’m sure you’re right about the court martial having different “rules”, but I wouldn’t necessarily be sure he knew ahead of time what he was really getting into.

    I assume the same things that are being handed down by the judge in Manning’s case then wouldn’t happen in the case of a civilian. Are NSA contractors and their employees considered civilians still? In the Thomas Drake case the prosecution couldn’t prove their case because they would have had to reveal secrets so perhaps the shoe is on the other foot outside of military courts.

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    • Lulu, where the trial is not bifurcated, everything comes in at once. But in bifurcated trials, where the case is heard on the merits and the sentencing trial is separate, the introduction of mitigation evidence, and character evidence, as well, is reserved for the sentencing.

      WRT what a true defense for Manning would be at the trial on the merits – he would have to show that the disclosures he made were within his duty to disobey an unlawful order, and that is an impossible reach here, or that his breach was an accident or unintentional, to show he had an innocent mind. That is also out of the question. So he is in the position of the hypothetical answer the Marine JAG gave to Congress, as follows, paraphrased:

      Q: If you were in a Jack Bauer time is of the essence situation would you torture?
      A: If I knew that a backpack nuke was to be placed somewhere in Chicago within the day and I believed the detainee knew where, or who and where, if I could not get the information quickly by conventional means I would resort to torture. At my Court Martial for torturing a suspect, at sentencing I would be able to show that I saved Chicago, or not, and I suspect that would affect my sentence. Hopefully, I would have saved Chicago and been faced with a 30 day 1/3 pay reduction.

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  17. That was always my defense when qb and I argued about torture. I would do it, to save my child for example, and then fall on my sword and hope for mercy.

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  18. I thought officers had an obligation to disobey an illegal order and a enlisted man, at least below the rank of E-4 did not have that ability.

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    • George, you are right. However, enlisted men have been able to raise the defense at CM on occasion, as a practical matter – it was not their obligation to defy, but in doing so they claimed not to have been guilty of failing to obey a lawful order.

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  19. I guess it’s only a leak when the wrong guy does it.

    The secrets shared with Woodward were so delicate Obama transition chief John Podesta was barred from attendance at the briefing, which was conducted inside a windowless, secure room known as a Sensitive Compartmented Information Facility, or “SCIF.”

    Isikoff asked, quite logically, how the Obama administration could pursue a double standard in which it prosecuted mid-level bureaucrats and military officers for their leaks to the press but allowed administration officials to dispense bigger secrets to Woodward. The best answer Isikoff could find came from John Rizzo, a former CIA general counsel, who surmised that prosecutor leaks to Woodward would be damn-near impossible to prosecute if the president or the CIA director authorized them.

    http://blogs.reuters.com/jackshafer/2013/06/11/edward-snowden-and-the-selective-targeting-of-leaks/

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  20. Since a backpack nuke wouldn’t take out Chicago, that Marine JAG’s response to Congress was stupid (sorry, Mark).

    Manning is getting the trial he deserves. I don’t condone what they did to him pre-trial, but he did what he did voluntarily and now he’s having to pay the piper.

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  21. Mark, I just get very, very, very weary of the “Jack-Bauer-24-world-hanging-on-one-terrorist’s-word” type of arguments for torture.

    Nothing–not even flying airplanes into three buildings–justifies torture in my mind.

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  22. To be clear, my earlier comment wasn’t in defense of torture it was in defense of the obvious question from qb and others, of “would I torture to save my child”………….yep, and then face the consequences.

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  23. The NYTimes editorial board takes on the charges of treason in the Snowden situation.

    Clearly, Mr. Snowden did not join a terror cell, or express any hostility toward the United States, when he turned over documents to The Guardian and The Washington Post. (He was also not nearly as reckless as Bradley Manning, the soldier on trial on charges with giving classified materials to WikiLeaks, who seemed not to know or care what secret documents he was exposing.) Mr. Snowden’s goal was to expose and thus stop the intelligence community from what he considered unwarranted intrusions into the lives of ordinary Americans. “My sole motive,” he told The Guardian, “is to inform the public as to that which is done in their name and that which is done against them.”

    While that principle is the right one, he should brace himself for the charges and possible punishment that may come in its wake. Most likely, he will be charged with disclosure of classified information under the Espionage Act, which carries a possible 10-year jail term for each count. Mr. Snowden broke the agreement he made to keep these materials secret. He appeared forthright in confessing to the act and can use his testimony, should he be brought to trial, to make the case that he exposed a serious abuse of power (though, technically, he did not blow the whistle on fraud or criminal activity).

    That’s what civil disobedience means: accepting the consequences of one’s actions to make a larger point. Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.

    http://www.nytimes.com/2013/06/12/opinion/surveillance-snowden-doesnt-rise-to-traitor.html?_r=0

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  24. The obvious answer for the person who saves Chicago from a nuclear weapon but has to engage in torture for the information is a Presidential pardon.

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