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Snowden's Common Law Defense

The U.S. Senator who divulged the Pentagon Papers in Congress says Edward Snowden and other citizens with access to classified information should have the same immunity as members of Congress to make public secret documents exposing government wrongdoing.
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The U.S. Senator who divulged the Pentagon Papers in Congress says Edward Snowden and other citizens with access to classified information should have the same immunity as members of Congress to make public secret documents exposing government wrongdoing.

Before Daniel Ellsberg, American's most important whistleblower until Snowden, leaked the Pentagon Papers in 1971 to The New York Times and The Washington Post, he went to Congress to find a Senator willing to make the Papers public.

Several turned him down, including George McGovern, who was worried what it would do to his presidential chances the next year. Eventually a freshman Senator, Mike Gravel of Alaska, agreed to take them.

With publication in the Times and Post shut down by the Nixon Justice Department's prior restraint, Gravel read the top secret Papers in a Senate hearing on June 29, 1971. He did so on the basis of a clause in the Constitution granting immunity to members of Congress to legally reveal classified information.

Article I, Section 6, Clause 1 of the U.S. Constitution, the so-called Speech and Debate clause, gives immunity to any member of Congress to avoid questioning about anything said in the course of a legislative act.

But when Gravel went to Beacon Press in Boston to publish the Papers as a book, Nixon sought his indictment. The Supreme Court unanimously upheld Gravel's right to reveal classified information in the Senate. But it ruled he couldn't bring it to an outside publisher. Nixon could have, but didn't, pursue charges for this against Gravel.

I tell the full story in the book I authored with Senator Gravel, A Political Odyssey, published by Seven Stories Press, with a foreword by Ellsberg. It is relevant today because Senators Ron Wyden and Mark Udall on the Senate intelligence committee say they had concerns about the National Security Agency surveillance programs but couldn't go public with the classified details. It's a point of view widely reported in the press.

"Yet shackled by strict rules on the discussion of classified information, Mr. Wyden and Mr. Udall, members of the Senate Select Committee on Intelligence could not -- and still cannot -- offer much more than an intimation about their concerns," The New York Times writes. "They had to be content to sit in a special sealed room, soak in information that they said appalled and frightened them, then offer veiled messages that were largely ignored."

Unless Wyden and Udall thought they would commit a felony or treason (which are exceptions to immunity), the Gravel case proves this is wrong. Indeed some U.S. leaders have accused Snowden of treason for revealing the same information. But there has to be "adherence to the enemy" and "intent to betray" the United States, for it to be treason. (Cramer v. U.S. 1945)

"These well-intentioned people are gutless," says Gravel, 83 and living in Burlingame, California.
"They were put on the intelligence committees only to be silenced. They should tell everything they know and resign from the committee. Screw it. What's so important about being on the committee when you are talking about principles of democracy?"

Being one of the few Senators ever to exercise the right, Gravel is indignant that Wyden and Udall did not seize the same privilege.

"Is their position more important than the people knowing the facts? What is the point of having power if you don't use it?," he says. "Where is the courage? Where is the leadership in this country?"

Snowden and Bradley Manning, the U.S. soldier on trial for leaking evidence of U.S. war crimes to Wikileaks, are providing that leadership, he says. Because of their courage he argues that they deserve the same immunity as Congressmen.

The precise language in Article One, Section Six of the Constitution says members of both U.S. Houses: "Shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."

The clause derives from the 1689 Bill of Rights protecting Members of Parliament speaking against the monarchy while in Parliament. Stuart kings had hauled many MPs into jail for speeches made on the floor.

It was adopted after the Speaker, Sir William Williams, was fined for libel for a privately-published report criticizing Charles II. The Bill of Rights guaranteed freedom of speech and debate in Parliament "for the sake of one... Sir William Williams, who was punished out of Parliament for what he had done in Parliament."

It was a milestone in the ascendance of Parliament over the monarchy. But Colonial American assemblies continued to dispute with royal governors the right to criticize the Crown. After the American revolution, James Madison put the clause in the U.S. Constitution as a "practical obstacle" to separate powers.

Gravel is reaching back into English legal history to argue for extending this immunity to all American citizens, including Congressmen outside of a legislative act.

"It's common law going back to the British system," Gravel said. "As a citizen, if you see a crime being committed you have a responsibility to stop the crime. Is that not conventional wisdom in the United States?"

Both Snowden and Manning witnessed crimes and had a duty to speak out, he says. Defenders of the NSA programs say the Patriot Act makes them legal, though whether they violate the Constitution's 4th Amendment against unwarranted searches and seizures will be decided by the courts after a lawsuit lodged by the American Civil Liberties Union. Other suits may follow.

"Does a bad law enacted by a Congress with a 13 percent approval rating trump the Constitution?" Gravel asks. "Only for the people who benefit from that interpretation. The issues are beyond representative government and found in common law. I had protection in Congress to stop a crime, and that crime was not letting the people know the Government was lying to them about continuing the Vietnam War. Keeping the people uninformed destroys democracy, what little of it we have."

In fact English common law includes a class of offenses known as "inchoate crimes," including becoming accessory to a crime after the fact for failing to report it. These have been incorporated into American common law in some jurisdictions. This raises a possible defense for Snowden, and indeed for Manning, on the grounds that they would themselves be committing a crime by not reporting alleged government criminality.

Misprision, or failure to report felonies or treason, has been part of U.S. federal statutory law since 1790. Subsequent court rulings have defined it to include an act of concealment of a crime. (In a twist, McClatchy reported that the Obama administration has instituted a type of misprision program itself called Insider Threat. It requires federal employees to watch their co-workers and calls on managers to punish those who fail to report suspicious behavior.)

"Any citizen under common law is duty bound as a citizen to protect the polity of society by revealing a crime that will in effect stop it," and this should be Manning and Snowden's defense, Gravel says. Both took oaths in the military to defend the constitution.

Though Manning is a solider under trial in a military court it "does not trump his civic responsibility in common law," Gravel says. "Bradley Manning has witnessed a crime" -- the video evidence to Wikileaks showing U.S. airmen killing 12 Iraqi civilians.

"Manning understands the Constitution better than the president, who is supposed to be a constitutional scholar," said Gravel, who ran against Obama in the 2008 Democratic presidential primary. "Obama took an oath to defend this country from without or within. And what is happening to this country is happening from within."

Manning's defense team tried to introduce the Nuremberg Principles into trial, which require the reporting of an alleged war crime. But the court threw it out.

Gravel thinks the entire case against Manning should be thrown out on the grounds of unlawful command influence. "Keep in mind that from the get-go Obama, as commander-in-chief, publicly made the statement that Bradley Manning is guilty," Gravel says. "Now if that is not command influence, I don't know what is."

But the military has to "prosecute him and nail him to the cross so they can intimidate all of the possible whistleblowers with the threat of the Espionage Act."

Manning is among a handful of people prosecuted under the 1917 Act, which has been used by Obama seven times, more than any other president. Snowden is the latest. Ellsberg was among the first. He was arrested shortly after giving the Papers to the press and to Gravel. But his trial was dismissed on prosecutorial misconduct when it was revealed that much of the evidence against him was obtained by burglarizing his psychiatrist's office. It was later known that the judge had also been promised the job of FBI director after Ellsberg's trial.

The Manning trial is in a sense a continuation of Ellsberg's, Gravel says. "Had they convicted Ellsberg, which was the plan, he would have probably appealed to the Supreme Court. Then we would have had that courageous body with black robes having to decide whether these people are truly committing espionage."

Like Manning, Snowden is threatening the enormous wealth and power engendered by the exaggerated fears of terrorism and its attendant surveillance state and perpetual war. A number of contractors, including Snowden's former employer Booz Allen Hamilton, together made an estimated $6 billion last year working with the NSA.

Politicians seek power and businessmen profits, and Snowden is threatening both. That's why they are after him, not because of "national security." Since it is their interests that he is threatening, and not the nation's, the fear of terrorism is trumped up to falsely extend that interest to the entire population.

"It's starting to unravel," he says. More revelations from Snowden and other whistleblowers will chip away their power. A successful ACLU lawsuit could shut down the phone records grab and PRISM if it is ruled unconstitutional.

"You can protest in the street all you want but they are going to crush you like a grape, as we saw with Occupied Wall Street." Gravel said. "They've got the military and the police. The way to reach them is the way they are being reached now -- revealing the truth about their abuse of power."

Joe Lauria is a veteran foreign-affairs journalist based at the U.N. since 1990. He is the author with Sen. Mike Gravel of A Political Odyssey, published by Seven Stories Press. He has written for the Boston Globe, the London Daily Telegraph, the Johannesburg Star, the Montreal Gazette, the Wall Street Journal and other newspapers. He can be reached at Twitter: @unjoe