AF cover 4Below is my column today in USA Today on the criminal complaint against Edward Snowden. I have been criticizing the charge under the Espionage Act as abusive and a mistake by the Administration. President Barack Obama has been criticized for years for his use of the controversial 1917 Act. He is responsible for six of the nine total indictments ever brought under the Act. More than all presidents before him and putting Richard Nixon to shame. He has used the act against sources for journalists and only recently was criticized for the attacks on the free press under his Administration. I do not question the basis for prosecution of Snowden for the disclosure of classified information or any theft of such documents. However, the effort to put him away for life does raise an interesting contrast with prior cases, which is the subject of today’s column (slightly expanded from the print version).

As Edward Snowden travels the globe looking for refuge from U.S. law enforcement, the self-proclaimed leaker has finally done what wars and economic crisis failed to do. He has united both Democratic and Republican leaders in an increasing shrill chorus calling for his head. Many of these politicians insist that Snowden must be put away for life or even face the death penalty.

Criminal embarrassment

Yet, what unites both parties in anger does not appear to be the alleged breach of security but the greatest crime of all: embarrassing the establishment. Snowden embarrassed Congress and the White House by discussing not only massive secret surveillance of our citizens but also false statements given to the public by our leaders. For that, he might have to pay with his life.

For many, the recent disclosure of massive warrantless surveillance programs of all citizens by the Obama administration has brought back memories of George Orwell’s 1984. Such comparisons are understandable not only with the anniversary of the book occurring the very week of the disclosures but the Administration’s “doublethink” interpretations of common terms like “transparency” and “privacy.” According to President Obama, the secret surveillance program is not only entirely “transparent” but something of a triumph of privacy.

Yet, another Orwell book seems more apt as the White House and its allies try to contain the scandal: Animal Farm.

Orwell wrote the fanciful account of a farm society of animals at the end of World War II during a period of authoritarian power and government propaganda. The farm government proclaimed equality of all animals but, as the pig Squealer explained, “all animals are equal, but some animals are more equal than others.” As our leaders joined together on television to bloviate about the need to capture and try the “traitor” Snowden, they were affirming a system of laws that seems to apply to the governed exclusively.

‘Least untruthful’

Consider the charges against Snowden: Official Washington insists that “justice must be done” in the face of a clear criminal act. Yet, when one of their own commits a crime related to classified information, it is difficult to get Attorney General Eric Holder, many members of Congress or the president to even acknowledge it.

For example, there is a clear crime that has been documented and virtually confessed to in this scandal: perjury. Not by Snowden, mind you.

When National Intelligence Director James Clapper appeared before the Senate, he was asked directly, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper responded, “No, sir. … Not wittingly.”

We now know that was a lie. Moreover, many of the senators who heard that testimony knew it was a lie because they admitted later to knowing about the NSA program to gather data on every citizen. Later, Clapper said that his testimony was “the least untruthful” statement he could make. Yet, of course, that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Indeed, when Roger Clemens was prosecuted for untrue statements before Congress, he was not told of the option to tell the least untrue statement on steroid use.

Where are all of our law and order advocates in the face of the admission that Clapper lied to the Senate and the public? The Justice Department routinely prosecutes people for relatively small misrepresentations in testimony. This was a whopper. A premeditated, knowing lie. Yet, Holder has not even ordered an investigation into the possible perjury. Ironically, the attorney general himself recently gave testimony that was widely viewed as false on the surveillance of journalists and the treatment of journalist investigation as a criminal conspiracy.

Slap on the wrist

Even when the governing elite is caught violating the same law as Snowden, it is considered a minor transgression. Snowden is alleged to have stolen government classified documents and removed them from secure locations. Prosecutors will likely seek a lengthy sentence for that act alone.

But in 2005, Samuel “Sandy” Berger, a former White House national security adviser to Bill Clinton, faced that same charge after he intentionally removed and destroyed copies of a classified document. Not only that but Berger then lied to investigators — a separate crime regularly prosecuted by the Justice Department. Yet, no one called for his long incarceration. Instead, he was allowed to plead guilty to a single misdemeanor with no jail time. That’s right, not a day. Just a fine and a three-year suspension of his security clearance. In other words, the deal allowed Berger to walk and even allowed him to reacquire a clearance after just three years.

Of course, none of our politicians is nearly as open and honest as Squealer. There will be no sign proclaiming the different treatment of the governing and governed classes. They prefer the barnyard to return to its previously sleepy existence once the offender has been put away.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.

June 24, 2013


  1. Bravo, JT! The two-tiered US justice system is to the point where a common shoplifter can spend 10 years in jail for robbing a $20 pair of jeans, but the criminal bankster cartel members are rewarded handsomely for robbing the country of billions of dollars. HSBC being the more blatant act where a fine paid by the shareholder was the punishment for crimes much more dangerous and deadly than the whistleblowing of truth-teller Snowden.

  2. Want to talk about the IRS? Waukesha County Circuit Court. Twelve person jury trial. The judge was an idiot. The dumb as* called a twelve person jury trial for abject stupidity. His stupidity.

    Some fat, stupid, dumpy supervisory revenue agent who was born in July, 1963 accused me of wanting to make contact. I had to go to court in Waukesha County four times. I had to go to court eight times in other courts before that.

  3. For David Gregory to ask why Greenwald should not be charged with a (felony) crime is ironic. It was David Gregory who committed a felony in D.C. by being in possession of an illegal 30-rd magazine. Despite multiple witnesses and video evidence, he was not charged after a cursory investigation. A less well-connected citizen would be enjoying the amenities of D.C. jails. Clearly, Mr Gregory thinks of himself as one of the animals “more equal” than the others.

  4. […] I previously wrote a column how our country seems to have developed separate rules for the ruling elite and the rest of us. There is no better example than the lack of response of the Senate to the admitted perjury of Director of National Intelligence James Clapper before Congress. While the Justice Department has prosecuted people for the smallest departure from the truth, including testimony before Congress, no one in the Senate is calling for an investigation, let alone a prosecution, of Clapper. For his part, Attorney General Eric Holder is continuing his political approach to enforcing the law and declining to even acknowledge the admitted perjury of Clapper. Now, in a truly bizarre moment, Clapper has written a letter of apology like an errant schoolboy to excuse his commission of a felony crime . . . and it appears to have been accepted. What is curious is that we do not have letters from senators like Dianne Feinstein apologizing to doing nothing when they were all aware that Clapper was lying in his public testimony. Welcome to America’s Animal Farm. . . . . For its part, the media is cooperating. Few are addressing the obvious perjury or past cases prosecuted on far less. After all, Clapper is one of the ruling elite and not the great unwashed public. The result is perjury by permission, a new exception to criminal acts for the governing elite. […]

  5. Zvyozdochka (@Zvyozdochka)
    1, June 25, 2013 at 7:34 am

    “…As an observer from afar, your Constitution thing has proved a particularly inept document…” —


    well, some uvvus ken that right well, eh? Lysander Spooner did, early on.

    personally i rather prefer the articles of confederation, wh wuz replaced–without authorization–by our constitution. a couple args against the articles is they didnt fund the federal govt well enuf, and things moved too slowly, to which i say A-men and Hallelujah !

    Those are two things we need to help us corral this obscene Godless and unAm-Murkin mess we’re refusing to deal with in this, our age.
    We are indeed living in Kakistan, North America!

    appreciate your comments Zvyoz’….
    tnx for dialoguing !!

  6. When Sweden and the World gives Snowden the Nobel Peace Prize, Obama can give his back in protest! Then we can break diplomatic ties with Sweden and put the entire country under surveillance until we can instigate a Swedish Spring Revolution and send in CIA weapons to overthrow their Socialist government.

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