Holder: We Won’t Torture or Kill Snowden

“Mr. Snowden will not be tortured,” Attorney General Eric Holder wrote in a letter sent to Russia’s Minister of Justice on Wednesday. He added, as if saying so were adequate—as if it had, in recent years, been enough—“Torture is unlawful in the United States.” The letter, which the Department of Justice gave to the Times, is part of what appear to be discussions between the Obama Administration and the Putin government about where Edward Snowden, the N.S.A. leaker, might go next. He has been living in the transit zone of Moscow’s Sheremetyevo International Airport for some weeks now. Holder said that it wasn’t true that, with his passport revoked, Snowden couldn’t go anywhere without asylum: the government would gladly give him “a limited validity passport good for direct return to the United States”—and nowhere else. When he got here, Holder said, he wouldn’t be killed:

First, the United States would not seek the death penalty for Mr. Snowden should he return to the United States. The charges he faces do not carry that possibility, and the United States would not seek the death penalty even if Mr. Snowden were charged with additional, death penalty-eligible crimes.

Holder went on to say that Snowden would be “brought before a civilian court convened under Article III of the United States Constitution”—which makes sense, as he is a civilian—and “would receive all the protections that United States law provides to persons charged with federal criminal offenses in Article courts.” He could even get a lawyer.

Holder said that he was writing to counter fears expressed in Snowden’s asylum application. What is striking, though, reading his letter, is how non-obvious these very obvious things have become. The United States has tortured, as much as the Obama Administration has disowned the practice. It has played fast and loose with the question of venues, keeping both American and non-American citizens out of the civilian courts where they belong. In just the past few weeks, lawyers for detainees at Guantánamo had to fight to keep from having their clients’ right to counsel undermined by the imposition of gratuitous genital searches before even simple contacts like phone calls to lawyers. (The Obama Administration did say Friday that it would begin the process of repatriating two Algerian prisoners; they are among eighty-six who are being held even though they’ve been cleared for release.)

Nor is it far-fetched to wonder what penalties or charges Snowden might ultimately face. Bradley Manning, whose case bears some similarity to Snowden’s, is being court-martialed for “aiding the enemy.” This crime can, in some cases, carry the death penalty, although prosecutors said from the outset that they would not seek it in Manning’s case. It is a deeply troubling charge, one that harms press freedom, because the prosecution’s theory is that Manning aided the enemy by releasing information that was published in places where people who don’t like the United States were able to read it. Without real modification, this could apply to any journalist-published secrets that the government considers harmful. The charge was also the basis upon which the prosecutor, in closing arguments, called Manning a traitor.

And what about the Obama Administration’s legal finding that it can order the targeted killing of an American abroad who is working with Al Qaeda or affiliated organizations?

Snowden’s revelations show how dangerous it is when one step of legal reasoning after another is taken, without a sense of where it all leads—without a sense of what it does to those constitutional rights that Holder gestures toward as self-evidently protective. There are now so many threads to our national-security jurisprudence, and not enough discussion about how they might be knotted up. Charlie Savage, in a piece in the Times on Friday, describes how the Foreign Intelligence Surveillance Court has, as it stands, been shaped above all by the legal imagination of Chief Justice John Roberts, who has named all of its members. What was once a check on illegal domestic wiretapping has become a workshop where words are re-defined and precedents are strung together, all out of public view—to the point where one can get a letter from the Attorney General, written in plain language, and not have any idea what it means.

Source: newyorker

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