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
.

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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The real question about George Osborne and the Evening Standard? Why he'd even want the job

The week in the media, from Osborne’s irrelevant editorship to the unrepentant McGuinness and Vera Lynn’s stirring ballads.

The big puzzle about George Osborne’s appointment as the editor of the London Evening Standard is why he wanted the job. The Standard is now just a local freesheet, a pale shadow of its old self. In Tube carriages, discarded copies far exceed those being read. Its columnists are lightweight [Ed: as an occasional columnist myself, thanks, Peter] and its news stale, mostly written the previous day. Critics of Osborne’s appointment describe the Standard as “a major newspaper”. It is no such thing. The idea that the editorship will allow the former chancellor to propel himself towards the London mayoralty is laughable. In last year’s election for mayor, the Standard, according to University of London research, ran twice as many positive headlines about the Tories’ Zac Goldsmith as it did about Labour’s Sadiq Khan. The latter won comfortably. The paper was so supportive of Khan’s predecessor, Boris Johnson, that it became known as “the Daily Boris”. But Johnson, with a high profile from television, hardly needed its backing to beat a tired and largely discredited Ken Livingstone.

If Osborne believes that the Standard offers him a significant political platform, it is just further proof that he belongs to an ignorant elite.

 

Violent legacy

More than anyone else, Martin McGuinness, who has died aged 66, represented how the IRA-Sinn Fein combined uncompromising violence with negotiating charm to achieve its aims. Unlike Gerry Adams, McGuinness admitted openly and proudly that he was a senior IRA commander. In Londonderry on Bloody Sunday in 1972 he carried a sub-machine gun, but apparently without using it. Later that year, he was among a delegation that held secret talks with British ministers and officials. The following year, he was arrested near a car containing prodigious quantities of explosives and ammunition.

Like many who recall the IRA’s campaign in mainland Britain – three huge bombs detonated less than half a mile from me – I could never quite accept McGuinness as a government minister and man of peace. Whatever he said, he did not renounce ­violence. He just had no further use for it, a decision that was reversible.

 

A peace of sorts

When I hear politicians saying they could never contemplate talks with al-Qaeda, I smile. They said the same about the IRA. The idea of negotiation, John Major said, “turns my stomach”. A month later, news leaked of secret talks that would lead to a ceasefire. You can call it hypocrisy but politicians have no practical alternative. Significant terrorist campaigns rarely end without deals of some sort. Even then, dishonesty is necessary. The parties to the Good Friday Agreement with Sinn Fein in 1998 never admitted the true terms, perhaps even to themselves. In return for a role in government, the IRA ceased attacks on the British mainland, army, governing classes and commercial interests. It remained in control of working-class Catholic enclaves in Northern Ireland, where it continued to murder, inflict punishment beatings and run protection rackets. Not a pretty bargain, but it brought peace of a sort.

 

Real war anthems

“We’ll Meet Again” and “The White Cliffs of Dover”, sung by Dame Vera Lynn, who has just celebrated her 100th birthday, are the songs most closely associated with the Second World War. This, when you think about it, is peculiar. Most wars are associated with stirring, patriotic anthems, not sentimental ballads. Even the First World War’s “Keep the Home Fires Burning”, before it mentions hearts yearning for home, stresses the noble, manly instincts that drove soldiers to fight: “They were summoned from the hillside/They were called in from the glen,/And the country found them ready/At the stirring call for men.” Lynn’s songs had only the wistful sadnesses of parting and reassurances that nothing would change.

Their “slushy” tone troubled the BBC. It feared they would weaken the troops’ fighting spirit. Despite Lynn’s high ratings among listeners at home and service personnel overseas, her radio series was dropped in favour of more virile programmes featuring marching songs. Unable to sing to her forces fans over the airwaves, Lynn bravely travelled to the army camps in Burma. A BBC centenary tribute showed veterans of the war against Japan weeping as her songs were played back.

The wartime role of this unassuming plumber’s daughter makes me – and, I suspect, millions of others – feel prouder to be British than any military anthem could.

 

Ham-fisted attempt

After his failed attempt to increase National Insurance contributions for the self-employed, Philip Hammond, it is said, will have a £2bn hole in his budget. It will be more than that. Thanks to the publicity, tens of thousands more workers in regular employment will be aware of the tax advantages of self-employed status and hasten to rearrange their affairs. Likewise, newspaper accountants of old, after circulating memos imploring journalists to reduce lavish claims for “subsistence” while covering stories away from the office, would find a sharp rise in claims from hacks previously unaware that such a perk existed.

 

Battle of Hastings

My fellow journalist Max Hastings, attending a West End play, was once dragged on stage by the comedian James Corden, told to help move a heavy trunk and slapped on the bottom. Ever since, I have approached plays starring comedians warily. I dropped my guard, however, when I bought tickets for a contemporary adaptation of Molière’s The Miser starring Griff Rhys Jones, and found myself drenched when Jones spilled (deliberately) what purported to be fine wine. It was of course only water and, unlike
Hastings, I shall not demand a refund.

Peter Wilby was editor of the Independent on Sunday from 1995 to 1996 and of the New Statesman from 1998 to 2005. He writes the weekly First Thoughts column for the NS.

This article first appeared in the 23 March 2017 issue of the New Statesman, Trump's permanent revolution