Will Edward Snowden be given a fair hearing?

Far from committing an act of treason, as several top US lawmakers have suggested, by all appearances the NSA whistleblower has done a public service.

We owe a lot to Edward Snowden, the former Central Intelligence Agency computer technician who exposed large-scale surveillance efforts within the United States and worldwide. 



He’s accomplished what the US Congress could not do and the federal courts have so far refused to do. Far from committing an act of treason, as several top US lawmakers have suggested, by all appearances he’s done a public service.



Thanks to him, we now know about the secret court order compelling the telecommunications company Verizon to disclose to the National Security Agency (NSA), on an “ongoing daily basis”, information on all telephone calls it handles.  We also now know about the secret NSA programme Prism, which allows direct access to information in the servers of Microsoft, Yahoo, Google, Facebook, YouTube, Skype and Apple, among other companies. And we know more about the ways the NSA is able, through its “Boundless Informant” initiative, to collate the information it mines from these efforts. 



These disclosures reveal two trends in the United States’ approach to intelligence - starting with the Bush Administration and, we now know, continued and augmented on President Obama’s watch. 



First, when given the option of broad surveillance powers at home and abroad, US intelligence agencies have taken that option and pushed it as far as possible.  

Why be constrained by the quaint concepts of following individual leads and demonstrating probable cause when they can instead sift through millions of telephone logs and plug directly into the servers of the email and social networking platforms that almost everybody uses? 



This approach is hardly surprising, for any number of reasons. Surely one significant incentive to adopt it is that the courts have held that disclosure of call logs, even in their entirety, need not meet the usual requirements for a warrant.



It is true that obtaining “telephony metadata” - records of calls placed from one phone to another, when and for how long, and, in the case of mobile telephones, through which cell towers - isn’t quite the same as eavesdropping on individual communications. But the courts appear not to appreciate just how much can be gleaned from such data. Especially if cross-referenced with other sources of data, an analysis of call logs can produce a scarily accurate picture of who associates with whom (and at what level of intimacy), how they spend their free time, what health conditions they may have, what their political views are likely to be, and other details of their private lives.



Second, obvious for some time, is the trend of state secrecy gone mad.



The sweeping collection of phone “metadata” was made possible by amendments in 2008 to the Foreign Intelligence Surveillance Act (FISA) which exempt such surveillance from any meaningful oversight. Under the amendments, the government has no obligation to reveal whose communications it intends to monitor, and the FISA court has no role in reviewing how the government is actually using the information it gathers.  Most remarkably, even if the court finds the government’s procedures deficient, the government can disregard those findings and continue surveillance while it appeals the court’s decision.



The American Civil Liberties Union challenged the law’s constitutionality on behalf of Amnesty International, human rights lawyers, and other organizations. Dismissing the case last year, the US Supreme Court said that Amnesty International and the other groups couldn’t show that we were likely to be subject to surveillance. And how could we? Surveillance and the court orders that authorise it are secret.



President Obama said last week that Congressional oversight is the best guarantee that Americans aren’t being spied on. As for the rest of the world, well, we’ve been on notice for some time that we’re fair game
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And even with the best will in the world, Congress can’t oversee what it isn’t told about. As two US senators observed in a letter last October, “the intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the FISA Amendments Act, and has even declined to estimate the scale of this collection”.



In fact, in March, one month before the Verizon disclosure order took effect, James Clapper, the director of national intelligence, denied collecting “any type of data” on large numbers of US citizens. He’s since characterised his answer as “the most truthful, or least untruthful,” response. 



Even before the US justice department filed criminal charges against Snowden, the United Kingdom had told airlines to deny him boarding on any flight to any country, lest he seek to travel to or through London in an effort to seek asylum outside Hong Kong.



The charges filed again Snowden include theft of government property and espionage. It has also been reported that US authorities have asked Hong Kong to detain him on a provisional arrest warrant. It is also said that an attempt to seek his extradition to the US is being prepared. 



It would be a miscarriage of justice if Snowden isn’t allowed to put forward a public interest defence to the charges. His stated motive was to inform the public of what the US is doing in their name. He’s said that he reviewed the documents prior to disclosure in order to ensure that he didn’t put anybody at risk. And there’s no question that the programmes he exposed are actually matters of public interest. 


If Hong Kong receives a request for Snowden’s extradition, it should insist not only that the charges presented have equivalents in domestic law but also that the public interest defence be available upon extradition. If it’s not, the extradition request should be refused. And if Snowden does seek asylum, whether in Hong Kong or anywhere else, he should be given a fair hearing. 


Michael Bochenek is Amnesty International's Director of Law and Policy

A poster showing Edward Snowden. Photograph: Getty Images
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Vince Cable will need something snappier than a graduate tax to escape tuition fees

Perhaps he's placing his hopes in the “Anti Brexit People’s Liberation Front.” 

“We took power, and we got crushed,” Tim Farron said in what would turn out to be his final Autumn conference as Liberal Democrat leader, before hastening on to talk about Brexit and the need for a strong opposition.

A year and a snap election later, Vince Cable, the Lib Dem warhorse-turned-leader and the former Coalition business secretary, had plenty of cracks about Brexit.

He called for a second referendum – or what he dubbed a “first referendum on the facts” – and joked that he was “half prepared for a spell in a cell with Supreme Court judges, Gina Miller, Ken Clarke, and the governors of the BBC” for suggesting it".

Lib Dems, he suggested, were the “political adults” in the room, while Labour sat on the fence. Unlike Farron, however, he did not rule out the idea of working with Jeremy Corbyn, and urged "grown ups" in other parties to put aside their differences. “Jeremy – join us in the Anti Brexit People’s Liberation Front,” he said. The Lib Dems had been right on Iraq, and would be proved right on Brexit, he added. 

But unlike Farron, Cable revisited his party’s time in power.

“In government, we did a lot of good and we stopped a lot of bad,” he told conference. “Don’t let the Tories tell you that they lifted millions of low-earners out of income tax. We did… But we have paid a very high political price.”

Cable paid the price himself, when he lost his Twickenham seat in 2015, and saw his former Coalition colleague Nick Clegg turfed out of student-heavy Sheffield Hallam. However much the Lib Dems might wish it away, the tuition fees debate is here to stay, aided by some canny Labour manoeuvring, and no amount of opposition to Brexit will hide it.

“There is an elephant in the room,” the newly re-established MP for Twickenham said in his speech. “Debt – specifically student debt.” He defended the policy (he chose to vote for it in 2010, rather than abstain) for making sure universities were properly funded, but added: “Just because the system operates like a tax, we cannot escape the fact it isn’t seen as one.” He is reviewing options for the future, including a graduate tax. But students are unlikely to be cheering for a graduate tax when Labour is pledging to scrap tuition fees altogether.

There lies Cable’s challenge. Farron may have stepped down a week after the election declaring himself “torn” between religion and party, but if he had stayed, he would have had to face the fact that voters were happier to nibble Labour’s Brexit fudge (with lashings of free tuition fees), than choose a party on pure Remain principles alone.

“We are not a single-issue party…we’re not Ukip in reverse,” Cable said. “I see our future as a party of government.” In which case, the onus is on him to come up with something more inspiring than a graduate tax.

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.