[Here we go with Edward Snowden again. Apparently on July 23 Eric Holder wrote Russia’s Minister of Justice about the Snowden affair, making distinctions and giving assurances about how we would treat Snowden if he were returned to us. The letter, and articles about it, are available online.[1] Basically it said:

  • Mr. Snowden says he can’t travel. Yes he can. He can travel here, where we will arrest him, and try him for crimes against the United States. You should send him back.
  • The United States will not seek the death penalty. The offenses he’s been charged with don’t warrant it, and as we come up with additional, more serious charges, we promise we won’t ask for it then, either.
  • We won’t torture him.
  • He’ll get full due process here. He’ll be tried in an Article III Court, will have a lawyer, will be entitled to a “public jury trial,” will not have to testify unless he agrees to, and the United States will have to prove his guilt “beyond a reasonable doubt.”

Some have argued that the letter really wasn’t intended for the Russians, with whom we do not have an extradition treaty. Instead, it was addressing the concerns of our allies, with whom we do have such treaties. You see, treaties or no treaties, they might not cooperate if they think we will torture or execute someone they turn over to us. But if that’s the purpose, why didn’t the AG write the Germans and the French, etc., rather than just the Russians? Or perhaps he did. Who knows?

But it’s also useful to look at the letter as the AG’s attempt to communicate directly with Snowden. If Snowden is evaluating his options, which of course he is, how would he see this latest expression of U.S. policy?]

Well, the first part might remind him of a nursery rhyme, you know, like the warped ones we all heard as kids. There’s ‘ring a ring ‘o roses,’ which today we’re told is about the Black Death.[2] Then there’s “Who killed Cock Robin?” which is self-explanatory but not very cheerful.[3] And finally there’s my favorite, which seems to summarize the AG’s invitation to Snowden: ‘Will you walk into my parlour?’ said a spider to a fly: ‘Tis the prettiest little parlour that ever you did spy.’[4]

So Snowden might be suspicious when he hears the AG say, “come on back, Mr. Snowden, and we’ll treat you right!” The inducements are a little thin. But let’s listen to the sales pitch.

For openers, Mr. Snowden, you may have noticed that, so far, we haven’t asked for the death penalty. That’s because the crimes we’ve charged don’t call for it. And we’ll make you a promise. If later we charge you with more offenses, that could justify the death penalty, we won’t ask for it. We have alternative sentences in mind, such as, for example, life plus 1000 years.[5]

And to sweeten the deal, Mr. Snowden, we promise not to torture you. Actually we’re not giving you much that’s new, because that’s official Administration policy. As you know, or should know, one of the first things President Obama did when he took office was junk the ‘enhanced interrogation’ techniques so loved by some people in the Bush Administration.[6]  But of course any promises made by us in this regard do come with an expiration date.

You see, the President abolished torture in interrogations by issuing an Executive Order, and, as we all know, such orders can be rescinded at any time say, for instance, when a new President comes into office. So all bets are off if a President Cheney is elected in 2016 and sworn in the next January. Or I suppose a President Lindsey Graham.

Will the Republicans get the water boards out again, start the nude parades and polish their cattle prods? Of course, arguably that would be illegal under existing law, but those same statutes and treaties were in force in the Bush Administration, and were ignored, or distinguished away by clever lawyers. So what’s to stop a new Republican administration from dusting off the old opinion letters and reissuing them with new signatures? Perhaps not much, and certainly not the fear of prosecution. None of the actors were [prosecuted, that is], the last time around.

Nevertheless, we have a good faith offer on the table, and one you ought to consider. No doubt some people are advising you to reject it, perhaps citing some hoary religious principle, like “O put not your trust in princes, nor in any child of man; for there is no help in them.”[7] If so, you should ignore the advice. We are perfectly trustworthy here, and fully intend to throw the book at you. A lot of people, who I can’t name, are seriously angry.

But there is good news. We’re prepared to offer you a public trial in an Article III court rather than a military trial down in Guantanamo.[8] What’s an Article III Court? Well, it’s the only kind of court expressly recognized in the Constitution. [9] And you are entitled to a lawyer, a jury trial[10] and a public one to boot. But, of course, a lot of it really won’t be public. After all, there’s lots of classified information to discuss, so we’ll probably have to restrict access a good part of the time. In the end your trial probably will be about as public as Bradley Manning’s[11]. You remember him, don’t you? Yes, you’re right; he doesn’t get much publicity these days.

And what if a President Cheney or someone like him is elected in 2016, and sworn in the next year? Well, I can’t speak for what he or his group might do. I’ll be long gone by then, to Wall Street or someplace else where I can make a lot of money.

So there you have it. Would you buy that deal? Especially if you thought you had done the right thing in the first place?


[1] The letter was published by the New York Times on July 26; there’s a pdf copy of it available on the website, but you have to hunt for it. See letter from Eric Holder, U.S. Attorney General, to Alexander Konovalov, Russian Minister of Justice, dated July 23, 2013, available at http://www.nytimes.com/interactive/2013/07/27/us/27holder-letter-russian-justice-minister.html?_r=0

[2] See Oxford Dictionary of Quotations (6th Edition) (Oxford, 2004) (cited hereafter as ODQ at __) at Nursery Rhymes, p. 569, n. 9 (“Ring a ring o’ roses, A pocket full of posies, A-tishoo! A-tishoo! We all fall down.”) Go to Wikipedia for a discussion of the plague interpretation. You can find it at http://en.wikipedia.org/wiki/Ring_a_Ring_o%27_Roses#Plague_interpretation

[3] See ODQ at Nursery Rhymes, p.570, n. 16. (“Who killed cock robin? I said the sparrow, with my bow and arrow, I killed Cock Robin…,” etc.)

[4] This nursery rhyme is from Mary Howitt (1799-1888). You can find it in the ODQ at Howitt, p. 406, n. 6.

[5] See, e.g., myfoxphilly.com, Kidnapper Ariel Castro Gets Life Plus 1,000 Years In Plea Deal (July 26, 2013) at http://www.myfoxphilly.com/story/22940657/kidnapper-ariel-castro-pleads-guilty-gets-life-plus-1000-years This is not to say, of course, that Mr. Snowden’s actions were as bad as the Cleveland kidnapper’s; just that such sentences are possible. And, of course, some people at NSA might think that Snowden’s actions were worse.

[6] See the blog of 04/20/2013, Torture Again, at https://opsrus.wordpress.com/2013/04/20/torture-again/ For more information on the early attempt to eliminate torture, see the Elemental Zoo blog of 09/29/2011, On Closing Guantanamo. You can find it on the old Elemental Zoo website, at http://elementalzoo.typepad.com/elemental-zoo/2011/09/index.html

[7] We’ve all heard this, I suppose; I thought it was from Shakespeare but actually, it isn’t. You can find it in the English Book of Common Prayer, or, in my case, in the ODQ at Book of Common Prayer, p. 143, n. 26.

[8] See the guardian, McGreal, Guantánamo trials plunged into deeper discord as confidence in court wanes (17 February 2013) at http://www.guardian.co.uk/world/2013/feb/17/guantanamo-trial-microphone-revelations

[9] See U.S. Constitution, Article III, Sec. 1. (“The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…”) You can download a reliable copy of the Constitution from the Government Printing Office; just go to http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CDOC-110hdoc50&packageId=CDOC-110hdoc50

[10] See U.S. Constitution, Article III, Sec. 2, cl. 3 (“The Trial of all Crimes … shall be by jury…”)

[11] Do you want to know more about Bradley Manning? Wikipedia, of course, has an article. It’s a work in progress, but so is the trial. See http://en.wikipedia.org/wiki/Bradley_Manning

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