by Robert E. Hunter

Edward Snowden has left Moscow for an “undisclosed location” in Russia, with a one-year freedom-of-the-country pass. The US government is naturally incensed with Russian President Vladimir Putin.

To borrow a Russian phrase coined by Nikolai Chernyshevsky and plagiarized by V. I. Lenin, Что делать? (Chto delat), or, “what [...]]]> via LobeLog

by Robert E. Hunter

Edward Snowden has left Moscow for an “undisclosed location” in Russia, with a one-year freedom-of-the-country pass. The US government is naturally incensed with Russian President Vladimir Putin.

To borrow a Russian phrase coined by Nikolai Chernyshevsky and plagiarized by V. I. Lenin, Что делать? (Chto delat), or, “what is to be done?”

Case Snowden is not an isolated event involving a felon who stole secrets that were properly and necessarily classified and willfully leaked them, knowing this would be detrimental to the country whose security he had sworn to protect. Nor is he a whistleblower who was rightly — in his view — trying to promote a national debate on things that have “gone too far.”

What is taking place is the coming together of two strands. And understanding context is necessary to understanding current events.

The first strand is the fact that “9/11” is now almost 12 years in the past, and, except for a few isolated instances — a shoe bomber, an underwear bomber, a nutcase in Times Square and the horrendous bombing at the Boston Marathon (not part of organized terror) — the United States has been more-or-less free from terrorism in the homeland. How much of that is due to the actions of US security institutions and personnel, no one can tell, but it’s probably considerable.

This very success has led to the attenuation of fear in the US about more terrorism here. Except for New York City, that fear hovers around like what scientists call “background radiation” — something that is always there but not worried about in our own lives. Furthermore, the average American has tuned out of the two wars that were spawned by 9/11, one that has been dubbed a “war of necessity” — Afghanistan, though that is a debatable proposition, beyond the initial spasm response in later 2001 — and the other “war of choice” in Iraq, which has helped create the mess in Syria and a general Sunni-Shite low-grade civil war throughout the center of the Middle East.

Against this background is questioning around whether a second look should be taken at the balance struck after 9/11 between “homeland security” and civil liberties, including the adequate and fair functioning of the US criminal justice system.

This questioning has had several parts, including the continued incarceration of alleged terrorists at Guantanamo; the use of military tribunals rather than civilian courts for Guantanamo inmates who have had trials; the holding of Private Bradley Manning in solitary for a long time before his court martial this month on multiple counts, including “aiding the enemy;” revelations about US spying on allies including the European Union missions in Washington and New York; surveillance activities by the National Security Agency, about which we still have been told very little; and even the appearance of NSA Director General Keith Alexander at the Black Hat  hackers’ conference in Las Vegas.

Case Snowden is only one element of this overall picture and is playing out against the failure of the US government to makes its case in public that its activities in the sphere of intelligence-gathering and protecting pass muster and are indeed needed to keep us all safe. Indeed, a Quinnipiac poll indicates that a majority of Americans surveyed believe that Snowden is just a whistleblower.

Strand two is in Russia. When the Soviet Union came to an end, Presidents George H.W. Bush and Bill Clinton worked hard to prevent the principal successor state, the Russian Federation, from being stigmatized as a loser: “Costa Rica with nuclear weapons.” For a long time, it was a country whose GDP was equivalent to that of the Netherlands, save for oil and gas, where Russia was bursting at the seams but which, any economist can tell you, made Russia a “rentier” state, able to sell stuff that comes out of the ground but not able to do much else. The Russian military even took five days to gain the upper hand in its 2008 mini-war with Georgia, a country well down the league table in military terms — simultaneously with the Beijing Olympics, which showed off an economic powerhouse.

Russia has also objected to US (and NATO) plans to extend anti-ballistic missile systems to part of Central Europe. The Russian elite has to know that this in no way would pose a threat to Russian offensive nuclear missile systems; at least part of Moscow’s objection must be due to the sense that, somehow, the US is taking advantage of its relative weakness. We can reject that reasoning but we should not just dismiss the possibility that it could be real psychologically and hence politically for the Russians.

Something we do have to take more seriously is Russia’s interest in being more directly engaged in the Middle East. In major parts, our interests are at least compatible; in others (Syria, and beneath the surface of a supposed agreement on Iran) far less so; and, in general, we have to deal with one another at a structured, strategic level, beyond the often episodic nature of current US-Russia relations regarding this region. Snowden is grist to this particular Russian mill.

Despite what Presidents Bush and Clinton tried to do to provide Russia with at least some (limited) role in the European strategic future, it was natural that the new Russia was portrayed negatively by a lot of people, some who had (legitimate) scores to settle with the Soviet Union. A lot of Americans did likewise; it even took 20 years for the US Congress to repeal the Jackson-Vanik Amendment, which had been designed to encourage the Soviet Union to permit the emigration of Soviet Jews; and the US and others did not permit Russia until August 2012 to join the World Trade Organization, despite urging by some of us, then serving in the US government in the 1990s, to do this instantly — WTO membership criteria be damned. We urged this in order to help give the average Russian a sense that, despite having lost so much, their country could become engaged in the global economy, with benefits for their daily lives and thus perhaps helping to engender a more positive attitude toward working with the West.

The Clinton administration did the right thing in balancing NATO enlargement, designed to provide confidence to Central European states, with the NATO-Russia Founding Act in 1997; and the George W. Bush administration took a small added step at the Rome NATO summit in 2002. But there was still no real acknowledgement, whether earned or not, that, like Pinocchio, Russia had become a “real boy” in the international political and economic system.

Case Snowden also has come at a time when the US, in particular, has been objecting to certain human rights practices in Russia, including limits not just on non-governmental organizations that are exclusively Russian, but also those which have foreign ties, like the Carnegie Moscow Center and the German political party foundations. And there have been the show trials of people who have fallen out with Putin and his supporters. The US Congress has even passed condemnatory legislation, an ultra vires action if there ever were one — except that, as the principal successor state to the Soviet Union, Russia is still bound by the 1976 Helsinki Final Act, with its human rights and activities provisions, even within the territory of sovereign states.

Take me seriously, as well as my country, Vladimir Putin is saying; and surely most Russians agree. And given that the Snowden affair at least raises issues of “fairness” and “human rights,” Putin is enjoying the chance to play games with the United States. (Of course, Putin might have more serious business in mind, which may be detrimental to US and Western interests, and this needs to be tested).

These two strands — U.S. Post-Terrorism-Stress-Rebalancing and Putin/Russia’s search for a renewed place in the sun — come together and at least in part explain the current imbroglio in US-Russian relations over Edward Snowden’s fate.

Chto Delat?

Since even in the medium-term, neither Russia nor the US really has very much to gain by this continuing controversy except mutual headaches, some way out needs to be found.

The first thing is for the US to make clear that President Obama will take part in next month’s G-8 Summit in St. Petersburg and will not make the Snowden business hostage to his being there.  Of course, as host, Putin has a stake in helping the president save face. Experience from 33 years ago counsels this approach. President Jimmy Carter pursued a “Rose Garden Campaign Strategy” in 1980 because of the Iranian hostage crisis. It cost him at the polls. And the US boycotted the 1980 Moscow Olympics over the Soviet invasion of Afghanistan. This also cost Carter at the polls.

Step two is for both countries to lower the rhetoric and, at the same time, transition to grown-up diplomacy, with an aim to get this matter resolved by the time of the G-8 summit. From the US perspective, the objective should be Snowden’s either deciding to return voluntarily to face the music, or showing himself unwilling to take any responsibility for his declared ambition and goals as a whistleblower.

For the US to achieve this means doing things about the two strands, noted above. On the role of the US intelligence community and government secrecy, it means getting on top of the controversy now rather than later and coming clean about what it is doing and what it is not doing and what it is prepared to place off-limits in the future. That includes revisions to the secret FISA Court (one that might actually turn down more than a tiny handful of government requests for surveillance authority); coming clean with Congress and the public about surveillance activities that affect Americans (where some small steps toward reassurance have been taken); and creating a process with congressional and public participants to ensure that civil liberties will indeed be protected; in effect, to strike a new, valid and enduring balance between security and citizens’ civil liberties and privacy rights.

At the same time, the Justice Department, along with the security agencies, needs to make clear that if and when Snowden returns to the US, he will be properly tried in a civilian court with a limited number of charges directly related to the real damage he (allegedly) has done to US security. No “secret list” of supposed damage to national security, where US government credibility has suffered so much. No piling on of charges, with potential consecutive sentences that add up to multiple lifetimes. And no overreaching, which even the military judge in the Manning court-martial decided the government had done by charging him with aiding the enemy.

If Snowden is thus assured of a fair trial, maybe he would then come home. Certainly, Russia could not detain him. If instead he decided to remain a “man without a country,” he would lose in the court of public opinion. Further, the damage he can cause to national security has already been done; but a standard for whistleblowing could be reset, with reasonable protections for those who do see misfeasance and malfeasance, but no free pass for those who cross the line.

Then, about Russia. Here, Putin has as much of a role to play as the US. While we need to show that we respect legitimate Russian interests that are not in conflict with ours, Putin and company have to recognize that, to be taken seriously in the outside world, they have to play by the international standards that have been developing over the last half-century. Cracking down on foreign NGOs has to be beyond the pale, as well as trying and convicting dead people (Sergei Magnitsky) who have challenged Putin’s authority or who have had the temerity to try running for Mayor of Moscow next month as a Putin critic (Alexei Navalny). What’s the point of Putin’s doing all this? These actions, while “sending signals” to other Putin opponents, should be small beer for him compared with the needs of an aspiring great power to be taken seriously by other countries.

The “Snowden part” of this drama cannot be brought to resolution unless and until he decides that he will return home. The “Putin part” can be bought to resolution when grown-ups in Moscow and Washington get together and understand why the needs of their mutual relationship should not be held hostage to anything that is not genuinely important to one side or the other.

We shall see if both sides have the wit and wisdom to proceed in this way.

By Karen J. Greenberg

As the 10th anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus.  The event that “changed everything” did turn out to change Washington in ways more startling than most [...]]]> Reposted by arrangement with Tom Dispatch

By Karen J. Greenberg

As the 10th anniversary of 9/11 approaches, the unexpected extent of the damage Americans have done to themselves and their institutions is coming into better focus.  The event that “changed everything” did turn out to change Washington in ways more startling than most people realize.  On terrorism and national security, to take an obvious (if seldom commented upon) example, the confidence of the U.S. government seems to have been severely, perhaps irreparably, shaken when it comes to that basic and essential American institution: the courts.

If, in fact, we are a “nation of laws,” you wouldn’t know it from Washington’s actions over the past few years. Nothing spoke more strikingly to that loss of faith, to our country’s increasing incapacity for meeting violence with the law, than the widely hailed decision to kill rather than capture Osama bin Laden.

Clearly, a key factor in that decision was a growing belief, widely shared within the national-security establishment, that none of our traditional or even newly created tribunals, civilian or military, could have handled a bin Laden trial.  Washington’s faith went solely to Navy SEALs zooming into another country’s sovereign airspace on aT moonless night on a mission to assassinate bin Laden, whether he offered the slightest resistance or not.  It evidently seemed so much easier to the top officials overseeing the operation — and so much less messy — than bringing a confessed mass murderer into a courtroom in, or even anywhere near, the United States.

The decision to kill bin Laden on sight rather than capture him and bring him to trial followed hard on the heels of an ignominious Obama administration climb-down on its plan to try the “mastermind” of the 9/11 attacks, Khalid Sheikh Mohammed, or KSM, in a federal court in New York City.  Captured in Pakistan in May 2003 and transferred to Guantanamo in 2006, his proposed trial was, under political pressure, returned to a military venue earlier this year.

Given the extraordinary record of underperformance by the military commissions system — only six convictions in 10 years — it’s hard to escape the conclusion that the United States has little faith in its ability to put on trial a man assumedly responsible for murdering thousands.

And don’t assume that these high-level examples of avoiding the court system are just knotty exceptions that prove the rule.  There is evidence that the administration’s skepticism and faint-heartedness when it comes to using the judicial system risks becoming pervasive.

Pushing Guilt Before Trial

Needless to say, this backing away from courts of law as institutions appropriate for handling terrorism suspects began in the Bush-Cheney years.  Top officials in the Bush administration believed civilian courts to be far too weak for the Global War on Terror they had declared.  This, as they saw it, was largely because those courts would supposedly gift foreign terrorist suspects with a slew of American legal rights that might act as so many get-out-of-jail-free cards.

As a result, despite a shining record of terrorism convictions in civilian courts in the 1990s — including the prosecutions of those responsible for the 1993 attempt to take down a tower of the World Trade Center — President Bush issued a military order on November 13, 2001, that established the court-less contours of public debate to come.  It mandated that non-American terrorists captured abroad would be put under the jurisdiction of the Pentagon, not the federal court system. This was “war,” after all, and the enemy had to be confronted by fighting men, not those sticklers for due process, civilian judges and juries.

The federal courts have, of course, continued to try American citizens and residents (and even, in a few cases, individuals captured abroad) in terror cases of all sorts — with an 87% conviction rate for both violent and non-violent crimes.  In fact, 2010 was a banner year for terrorism prosecutions when it came to American citizens and residents, and 2011 is following suit.  As could have been predicted, in the vast majority of these cases — all the ones that mattered — there were convictions.

You might think, then, that the courts had proved their mettle against mounting criticism and distrust of a system said to be insufficiently harsh. And initially, Obama’s Department of Justice defended civilian courts as resilient and flexible enough to try terror cases.

But that didn’t last.  Recently, the Obama administration has reinforced a policy (begun under President Bush) which offers an ominous new twist on American justice: punishment before trial.  It has, for example, relied upon various extreme methods of pre-trial isolation — including a version of restrictive orders known as Special Administrative Measures, or SAMs — that reek of punitiveness and have often caused severe psychological deterioration in suspects awaiting trial on terrorism charges. The most noteworthy case of this is Syed Fahad Hashmi’s.  An American citizen arrested while studying in England, Hashmi had allowed an acquaintance, Mohammed Junaid Babar, to stay in his apartment for two weeks. Babar, who testified against Hashmi and was later released, allegedly had socks, ponchos, and raingear intended for al-Qaeda in his luggage and allegedly used Hashmi’s cell phone to call terrorist conspirators. Hashmi, accused of “material support” for al-Qaeda, was kept under SAMs for three years without trial — until he finally pled guilty.

The urge to punish before a verdict comes in reflects the same deep-seated conviction that the U.S. court system is simply not to be trusted to do its job.  Two recent cases — that of whistleblowers Thomas Drake and Bradley Manning — illustrate how, in cases where national security is believed to be at stake, Obama-era pre-trial treatment has taken up the distrust of the courts, civilian or military, that characterized the Bush years.

Drake, an executive for the National Security Agency (NSA), became a whistleblower over what he considered mistaken policy decisions about an ill-performing data-sifting program which, among other things, he thought squandered taxpayer money. Subsequently, he revealed his disagreement with the agency’s warrantless wire-tapping program, which he believed overstepped legal boundaries. Charged initially with violating the Espionage Act and threatened with a draconian 35-year jail sentence, Drake finally pled this past June to a misdemeanor count of “exceeding the authorized use of a government computer.”

In Drake’s four-year saga, his pre-punishment took the form not of pre-trial detention but of the destruction of his livelihood. He was initially fired from the NSA and from the National Defense University position to which the NSA had assigned him. Once indicted in 2010, he was forced to resign from a subsequent teaching post at Strayer University. All told, the formal and informal hounding of Drake resulted in the loss of his jobs and pension, as well as $82,000 in legal costs. Ultimately, Drake was sentenced to a year’s probation and 240 hours of mandatory community service. By that time, he had been ruined financially and professionally, thanks to the government’s disparagement of him and the multi-year delay between its accusations and the lodging of formal charges against him. Drake now works at an Apple Store. In other words, well before the government took its chances in court, Thomas Drake was punished.

Another highly publicized case where punishment preceded trial has been the mistreatment of Army Private Bradley Manning while in military custody in a Marine brig in Quantico, Virginia, awaiting charges.  The Obama administration believes he turned over a trove of secret military and State Department documents to the website WikiLeaks.  Following his arrest, Manning was kept in subhuman conditions.  He was forced to sleep naked and to strip for daily inspections, though as news about his situation generated bad publicity, he was eventually allowed to sleep in a “tear-proof” gown.

There is something deeply disturbing about the very different ways Manning and Drake were pre-punished by the government — both directly in the case of Manning and indirectly in the case of Drake — before being given due process of any kind.  Like bin Laden’s killing, both cases reflect an unspoken worry in Washington that our courts will prove insufficiently ruthless and so incapable of giving the “obviously guilty” what they “obviously” deserve.

The Courts Take Notice

As it turns out, the judicial system hasn’t taken the government’s new attitude lying down.  Various judges and juries have, in fact, shown themselves to be unfazed by both public and governmental pressures and have, in terror and national security cases, demonstrated signs of balance and of a concern for justice, rather than being driven by a blind sense of revenge.

In the past year, there has been an unprecedented number of high-profile terrorism trials. All have resulted in convictions, which have nonetheless not reflected the unstinting harshness that critics of court-centered counterterrorism insist upon.  In the case of Ahmed Ghailani, the sole Guantanamo detainee to face trial in the nation’s criminal justice system, the jury, having done its work of assessing the evidence, acquitted the defendant on 284 of 285 counts, including all the murder charges associated with the 1998 bombings of the U.S. embassies in Kenya and Tanzania.  On the single count on which he was convicted, however, Ghailani was given a life sentence without parole.

Meanwhile, a high-profile terrorism case — that of Tagawwur Rana — ended in a jury acquittal on its most serious charge.  Rana had been accused of cooperating in the 2008 terrorist attacks in Mumbai, India, which resulted in the deaths of more than 160 individuals. The jury found Rana guilty of material support, but not of helping to coordinate the attack.

These cases and others like them have, of course, been fodder for all the usual critics who consider anything but a 100% conviction rate on all charges in all cases to be a sure sign not of the justice system’s strength, but of its fundamental weakness.  And yet, such cases have showcased just how effectively the system still works, in a more nuanced way than in the previous near-decade, as well as in a subtler and more just way than Washington has managed to approximate over that same period.  Despite the fears, pressures, and scare tactics that are entangled with all such terror cases, we now have living proof that juries can think for themselves, and guilt can be a partial matter, rather than a Washington slam-dunk.

Of late, federal judges on such cases also seem to have been signaling to the government’s representatives that they must be more restrained in their approach to national security cases, both in and out of court. In late June, for instance, during the sentencing of three of the men convicted of conspiring to bomb two synagogues in Riverdale, New York, and to launch a Stinger missile aimed at aircraft over Newburgh’s Air National Guard Base, Judge Colleen McMahon struck back at the government’s case.  “I believe beyond a shadow of a doubt,” she said, “that there would have been no crime here except the government instigated it, planned it, and brought it to fruition.  That does not mean that there was no crime. The jury concluded that you were not entrapped, and I see no basis to overturn their verdict.”

In the Drake case, Judge Richard Bennett was similarly distraught about the evident excesses in the government’s approach. At sentencing for the single minor count to which Drake agreed to plead, the judge bluntly refused to impose the $50,000 fine the prosecution was pushing for on the grounds that punishment had already been administered — prior to the court process. “There has been financial devastation wrought upon this defendant,” said Bennett, “that far exceeds any fine that can be imposed by me.  And I’m not going to add to that in any way.  And it’s very obvious to me in terms of some of the irritation I’ve expressed… not only my concern over the delay in this case… [but also the prosecution’s] inability to explain … the delay in this case… I think that somebody somewhere in the U.S. government has to say… that the American public deserves better than this.”

In the recent jury decisions, as in the growing expressions of judicial dissatisfaction, an optimist might find signs that the system is finally starting to right itself.  On the other hand, a pessimist might come to the conclusion that the government will, in the future, simply put even more energy into avoiding the court system.

The bottom line is that the Obama administration, like its predecessor, defines success in terrorism prosecutions not by assessing whether or not due process and fair verdicts are administered, but solely in terms of what they deem proper punishment for those accused of violating national security — especially when doing so minimizes partisan political clashes. By refusing to rein in its evident distrust of the judicial system when it comes to national security, the government is perpetuating a legal landscape that, to this day, lies in the shadow of Osama bin Laden.

Karen Greenberg is the executive director of the New York University Center on Law and Security, a TomDispatch regular, and the author of The Least Worst Place: Guantanamo’s First One Hundred Days, as well as the editor of The Torture Debate in America.

Copyright 2011 Karen J. Greenberg