Be glad you've got your WBAI, become a member online at WBAI.org.
And you're listening to radio station WBAI in New York, where the time is just about
seven o'clock.
And of course, that means all the chaos and confusion that it's time once again for, ah
yes, Off The Hook.
The telephone keeps ringing, so I ripped it off the wall.
I cut myself while shaving, now I can't make a call.
We couldn't get much worse, but if they could they would.
Bum didly bum for the best, expect the worst.
I hope that's understood.
Bum didly bum boom!
And a very good evening to everybody.
The program is Off the Hook.
Emanuel Goldstein here with you on this Wednesday evening, joined tonight by Mike.
Hi.
Rob T. Firefly.
Good evening.
Kyle.
Hello, everyone.
About a mile away from a microphone.
And on the telephone tonight, I just found out, is Bernie S.
Greetings from Philadelphia.
I'm sorry.
The Comrex box is apparently locked in the closet and disconnected.
Well, whose idea was that?
I don't know.
It needs to come out of the closet.
Yeah, I'll say.
Okay.
You know, it's amazing.
We've been in town literally a block away for the last couple of hours.
And even with that, you'd think we'd get here and have a nice relaxing time.
But no, we're throwing things together at the last possible minute.
Because we're always busy.
We're always doing something else and adding to our huge list of things that we carry around
with us.
But you know what?
It's fun.
It's what we love doing.
And I wouldn't have it any other way.
Hey, joining us on the phone right now at this moment is Edward Snowden's lawyer, Ben
Wisner.
Ben, are you with us?
Yes, it's actually Wisner.
I'm glad to be here.
Oh, I'm sorry.
Oh, okay.
Well, I just learned something.
This is what happens when people communicate only by email.
I know.
Isn't that something?
We've never actually said each other's last names to each other in person.
It's true.
But there's so many of you, I can't tell if this is a radio show or a jury trial.
Well, yeah.
Maybe it's good practice.
I don't know.
Well, tell me, Ben Wisner, you spoke at Hope No. 9 back in 2012.
And of course, that was before the whole Ed Snowden thing happened.
How did you manage to become the main representative for him?
Don't think I don't ask myself that question all the time.
I did not know his name before you did.
I first saw him and learned who he was when The Guardian posted that video that Laura
Poitras shot of Glenn Greenwald interviewing him in Hong Kong in the Mira Hotel.
I did, however, before that, know that he existed because I have both professionally
and personally known Glenn Greenwald and Laura Poitras for quite some time.
So I knew that they had been in touch with a source who claimed to be a high-level intelligence
official with all kinds of interesting information.
I knew that they were traveling to Hong Kong to meet this person.
And when he found himself, Snowden, stuck in the transit zone in the airport in Moscow,
Glenn and Laura put me in touch with him because they realized that he was likely to need all
kinds of legal assistance.
That was in July of last year, just about a year ago this week.
It seems like so much longer because so much has happened in that one year.
Yeah.
I mean, sometimes I think it's gone by in a blink, and other times, yeah, I feel like
an old man.
It's true.
I mean, you know, I've been doing this work since, well, I started at the ACLU a month
before 9-11, so it's been quite an arc of seeing how the country overreacted to those
attacks.
Wait, you joined, you started working at the ACLU here the month before 9-11?
In August of 2001.
Wow.
So this has really defined my whole career here, working on issues related to national
security, torture, rendition, Guantanamo, black sites, surveillance, watch lists.
And I have to say that after doing it for about 10 years, I really felt like I had hit
a wall.
You know, the fact that 10 years after those attacks, the country still hadn't found a
different way to talk about terrorism, to contextualize it, was still treating it like
an existential threat that required us to dispense with our values and change our legal
system was so frustrating to me that I really thought I need to do something else.
And I have to say that the year of Snowden has injected so much energy and enthusiasm
into our work that, you know, this wall that we felt that was in our way has really crumbled.
And it's not just because in technical terms, the documents that he gave to journalists
have given us legal standing to challenge some of these programs in court for the first
time, although they have.
It's really that, you know, you sense that the whole debate is different, that no longer
are people willing to just listen to senior government officials say, trust us.
They're trying to hurt you and we're protecting you and you need to trust us.
You know, that infamous clip of James Clapper, the director of national intelligence, just
blatantly lying under oath in a hearing in Congress, I think has done so much to erode,
rightly so, the credibility of the security state.
And that coupled with all of this documentary evidence that shows that the government wasn't
just concealing its actions from us, it was misleading us about what it was doing, has
given us this opportunity, I think, to reverse what had really been, seemed like just a one-way
trend away from liberty and towards the security state.
It's incredible hearing this and realizing how the conversation has changed in such a
short period of time because when this first happened a year ago, a lot of people were
kind of skeptical as to Snowden's claims.
And then you saw things like Clapper lying blatantly, you saw all the revelations coming
out and there seems to be no shortage of the amount of surveillance that we and people
overseas are subjected to on behalf of the NSA, on behalf of corporate America, on behalf
of so many entities.
And it's just, it's almost unbelievable.
When I first saw Ed Snowden speaking, I was amazed by how cool and collected he was, how
he basically was standing there facing up to all of this evil and being very stoic about
it.
And I just, it was just, to me, the best possible person to do this, to stand up and challenge
and do it in an articulate way, a non-jingoistic way.
And I just, I hope that that's appreciated by a lot of people.
I hope so too.
I think you're right.
It's hard to imagine someone more level-headed, clear-headed, you know, at the same time modest
and idealistic.
You can't really consider yourself just an ordinary person and be willing to do what
he did, you know, to give up your entire life, to put yourself on a plane to Hong Kong without
knowing what the future holds.
You know, he must on some level understand that he's an extraordinary person, even though
he insists that he isn't.
But really, I've been impressed at every turn by how committed he is to principle, how he
puts reform ahead of himself, and how willing he is to learn.
Remember, this is someone who wasn't exactly able to consult with lawyers before he'd made
any of these decisions.
He really had to do all of his strategic planning on his own.
And now he finds himself going from real obscurity to being a global icon overnight, and has
had to learn a lot.
He's had to learn a lot about how the political system works, about how the media operates,
about how the legal system, you know, might work for or against him.
And he's really, really absorbed all of it.
And you can actually, I think, see it.
He was impressive when we first heard him speak in June of last year, but I think he's
even more impressive when he speaks now, and not to steal your thunder, but, you know,
he will be speaking at Hope 11.
Yeah, I forgot to mention that.
I hope not...
Hope X, actually.
Hope X.
Yeah.
In person at Hope 11, I hope.
Maybe.
Yeah, that's right.
That would be awesome.
Unless maybe we have to go to Russia to present that one.
Knock on wood.
But Hope X, he will be there, what is it, on the 19th that he'll be speaking?
On the 19th, on Saturday.
Actually, it'll be a conversation with Daniel Ellsberg.
And that, you know, if I wasn't one of the coordinators of this, I would really want
to go to that to see these two heroes of America speaking together.
Daniel Ellsberg, of course, responsible for the Pentagon Papers and changing the conversation
about the Vietnam War way back in the 70s.
And Edward Snowden, of course, doing monumental things, changing the conversation about surveillance,
our privacy, things like that.
And just...
That's right.
And I'm telling the coordinators now that this won't be their first conversation, that
over the course of the last year, facilitated by some of us, they've been able to have a
series of encrypted chats.
And those discussions have been just extraordinary, as these two people who were deep mutual admirers,
you know, got to know each other over this intimate and sometimes awkward format.
You know, they now both serve as board members for the Freedom of the Press Foundation.
So Snowden has appeared by Google Hangout at board meetings.
So these two know each other, you know, fairly well by now.
And I think it should be really a great, great event to see them speak together in public.
And the Freedom of the Press Association, I believe, Bernie, correct me if I'm wrong,
they will have a vendor table and people can contribute to them?
That's right.
So the Freedom of the Press Foundation, which Daniel Ellsberg co-founded, will have a vendor
table at HOPEx, and so will the ACLU, which Ben was kind enough to find some paralegals
to staff.
Actually, it was Bernie who was kind enough to give us passes so that we could be there.
But yes, the ACLU will be there at a vendor table, and I hope that people will come and
talk to us and will join.
And then, you know, the ACLU has two computer scientists, technologists on our staff, Chris
Segoyan, who is known to some of you, and Daniel Cahn-Gilmour.
Both of them will be giving solo talks on Friday and Sunday, I think, at HOPEx.
So the ACLU will be a big presence, too.
If you want more information about the conference, hope.net, H-O-P-E.net takes place, Hotel Pennsylvania,
July 18th through the 20th, right here in New York City.
Mike?
I'm a bit unclear as to your implication that Daniel is not known to us.
He is, and we're excited to have him speak as well.
Yeah.
He's absolutely superb.
I have to say that when I took over the ACLU's Speech, Privacy, and Technology Project, which
is a new project here, the first hire that I made was Chris Segoyan.
And having a project that mixes lawyers with computer scientists and engineers, technologists,
it's just so exciting to have these people in a room together.
It both makes our litigation responses more sophisticated and more technologically savvy,
but also they're able to bring to us issues that we might not have been able to identify
as civil liberties issues.
I mean, if you had tried to talk to me two years ago about the global trade in zero-day
vulnerabilities, my eyes would have glazed over.
And now I think that that's an issue that even some of the broader public is getting
to see as a result of some of the Snowden revelations.
So we're very proud to be able to show up at a conference like HOPE with people who
fit right in in that community.
Well, Ben, let me ask you something, because I'm sure it's on everybody's minds.
You're in touch with Edward Snowden on a fairly regular basis.
How is he holding up under all of this pressure and attention and just being basically kept
out of his country, kept away from the people that he knows and loves?
Yeah, I don't know how he does it.
But I think part of it, though, is that, remember, this isn't somebody who, before
he left for Hong Kong and now Moscow, was exactly embedded in a community of family
and friends.
This is someone who had spent the better part of a decade already in the intelligence community,
often undercover, in places like Geneva, Japan, elsewhere.
So he wasn't someone who was so accustomed to being extremely social or even regularly
with family.
But I think in some ways, he is more socially connected now that he is a public person and
is in touch with journalists, lawyers, activists, and other supporters regularly.
Now, there's no question that it's painful for him to be separated from family.
I'm glad to say that some family members have been able to go over and visit him.
The lawyers go over and visit, and some journalists have been over to visit.
So he's not sitting alone all the time.
And he also is someone who I think feels very connected online to people.
And I was struck when I went to see him last January.
I thought, given my experiences of interacting with people, that it would be a profoundly
different experience to be with him in the flesh after we had largely been chatting for
all these months.
But actually, it was more a continuation of that.
He really is himself online, and I hope that people take some heart.
This isn't somebody who is living in a cold and lonely exile.
This is someone who is very, very engaged with the debate that's going on around the
world, very much in contact with people, with friends, family, and supporters, and someone
whose morale is very, very high.
Given the fact that the impact of what he did can already be seen, I think, around the
world.
It's interesting.
We saw a guy over at the hotel earlier today when we were setting some things up.
And his reaction to the news that Edward Snowden would be at the conference was that he wanted
to stand up and boo him and say that he's learned things that he doesn't want to know.
Or that he might be forced to if he was to go and watch the talk.
And we found ourselves sort of reminding him that our event attracts all kinds of
different people, and that he might get more out of it than he thinks at a first glance.
And one of the things, and I've heard this many times, is that, well, this guy went over
to Russia and is giving away all of our secrets.
You must be confronted with all kinds of misrepresentations as to what Ed Snowden has actually been doing.
How do you counter this for, say, some people listening now who think of Ed Snowden as a
traitor, as somebody who's giving away secrets, telling us things that we don't need to know
about, things that if we're not doing anything suspicious, we shouldn't be concerned, we
have nothing to hide?
What do you say to people like that?
I mean, I think there's a lot embedded in that.
And I think that at the end of the day, his actions are going to have to speak for themselves.
I mean, there are people, and I'm one of them, who are out there defending and explaining.
But there are people who will never be persuaded.
If someone says to you, you're a liar, and you say, no, I'm not, I'm telling the truth,
that's not exactly a persuasive rebuttal.
They'll just think you're lying.
And the same is true.
You're a spy.
Well, no, I'm not.
I will say this.
I think one of the very common misperceptions about Snowden is that he dumped a huge amount
of information on the public.
Now, the number of documents that he has released to the public is actually zero.
What he did is that he gave information that should not have been concealed from the public
in the first place, for the most part, to excellent journalists with the instructions
that they and their editors, in consultation where appropriate with government, should
make a decision in the public interest about what should be published and what should not
be published.
And every single thing that we've learned in the last year, we've learned because The
Washington Post or The New York Times or The Guardian or First Look or The Intercept or
one of these publications has made the determination that the public had a right to know what they
were publishing.
Now, maybe there are some people who think that they were better off not knowing these
things.
That's a hard argument to make.
I think that most people recognize that the amount of information that is withheld from
the public is grossly inappropriate, that the vast majority of information that is classified
is not classified for national security reasons, but really for reasons of protecting prerogatives
and avoiding accountability and even just bureaucratic laziness.
I can tell you unequivocally, as he has said many times, he hasn't cooperated with any
government other than the United States.
He traveled to Hong Kong because he wanted to be sure that he could meet safely with
journalists without being, frankly, disappeared if he were in a place where the U.S. and its
allies had more influence.
He is in Russia because he wasn't able to continue on on his trip to Ecuador because
he had no passport and it was stopped, and now he's there because there is no other country
where he can safely travel to and be.
It's not where he would prefer to be, but again, as much as there are people who will
never accept that he's something other than a traitor, I do think that the level of public
support that he has is also remarkable.
In January of this year, the most important newspaper in the world, the New York Times,
essentially said that he should be given amnesty.
There are people who are running for president in 2016 who have discussed whether he should
be given amnesty.
This is a question that politicians are asked, and even though most of them say no, it's
a reflection of how valuable the information is that he shared, that this is even something
that senior politicians even have to answer.
So you've seen a change in public opinion over the last year?
Undoubtedly.
And again, it's still divided in the United States.
There's still a significant portion of the public that doesn't see him as someone who
acted in the public interest, but there's a larger share that sees him the other way,
and then there are people who are in the middle, as with so many issues.
But I also think that we need to look at how he's viewed in the rest of the world, where
his status as a hero is really entrenched.
And I think that by now, the United States government must recognize that the worst thing
they could do for their reputation abroad and diplomacy with young people around the
world would be to put Edward Snowden on trial.
I think that quietly, they probably say to themselves that they would rather have him
where he is than in a courtroom in America, where around the world it would be viewed
as prosecuting a truth teller and a human rights activist.
Well now, okay, as far as what the United States government has done with regard to
Ed Snowden, where does that stand?
Have they filed official charges against him?
They have.
Back in June of 2013, they put out a charge sheet with three charges under the Espionage
Act of 1917.
Now those three charges, each one could carry a 10-year sentence, but remember that at this
point, they could add hundreds of charges.
They could add an additional charge for each document that has been not just published,
but handed over to journalists.
So there's no question that if he were here in a court, he would be facing a sentence
of life in prison.
He would be held in isolation.
He would be subjected to what are called special administrative measures that would
limit his interactions with even his counsel and certainly with the press.
So you would not have Edward Snowden participating in the debate that he helped to launch.
So that might explain-
I have a question for you.
Bernie, that might explain though why he doesn't want to just come back and face the charges
like some people suggest.
Well, I think that's right.
I mean, let me explain that in a little bit more detail, but not a lot more.
And then Bernie, you go ahead after that.
So basically, these charges under a 100-year-old espionage law don't distinguish between giving
information to the press and the public in the public interest and selling secrets to
an enemy of the country.
It treats those things in the same way.
It's not relevant in a prosecution under the Espionage Act that, for example, these disclosures
led to a historic global debate, that they've already led to changes in US law, that the
president has already ended one of the programs, that Congress has engaged in the first sweeping
intelligence reform debate since the 1970s, that courts have declared some of these programs
unconstitutional.
All of that is irrelevant.
The only thing that the government would have to show is that this information was so-called
national defense information, that he knew it was, and that he gave it to people who
were not authorized to receive it.
There's no opportunity for him to say, this should not have been withheld in the first
place, and its publication has done enormous good and no harm.
It's basically strict liability.
That's why I think that he made the right choice to go to the airport instead of to
a lawyer's office.
Go ahead, Bernie.
Well, basically, you answered my question, Ben.
I was just going to say, why wouldn't, as our Secretary of State, John Kerry, says-
Man up.
... just come back man up and come face the music, or was it Hillary Clinton that said
face ... Somebody said face the music.
He frankly, from a legal standpoint, he literally would not be able to, not be legally permitted
to present a defense as to what he did.
Right.
A public interest defense.
That's exactly right.
I mean, I think ultimately the question is, what do you think should happen to someone
who did what Snowden did?
If you think that he should go to prison for a very, very long time, and perhaps the rest
of his life, then you say he should come back and face the music.
That's what the music is.
The music is a life in a maximum security facility.
If you think that he should be treated leniently or should be, as I believe, praised rather
than punished for the role that he's played in helping to reform our democracy, then you
don't think that he should come back and face the music.
I think that there are people who have this notion that he could come back and 12 jurors
would hear him out and decide if what he did was justified or not, and then they would
get together in a room and come up with what they think is the right punishment.
That's not how the legal system works, and it's not how it would work in his case.
All of the debate that we're having about whether what he did was justified or not would
be irrelevant in a trial under the Espionage Act.
Well, I'm normally not in favor of ticker tape parades.
I think they're a waste of money, but if anyone is deserving of one, it's Edward Snowden,
and I live to see the day when he gets one in this country, when people actually realize
the hero that he is.
Ben, have you seen any kind of backtracking on behalf of the Obama administration as far
as, well, maybe we shouldn't be so hard on him, maybe listen to what he has to say, maybe
give him some kind of way out of this?
Listen, I'm not going to go into any of the details of conversations that have taken place
with the government for obvious reasons.
I will say that I think that there are differences of opinion within the government and within
various agencies in the government about whether the principal posture of the country towards
him should be one of criminal punishment or whether the principal posture should be, how
can we work together?
How can he return to being a helpful asset to the U.S. and not just someone who's being
pursued?
It may be that that day is a longer way off.
We'll just have to see.
I do think that every month that goes by, and certainly every year that goes by, the
idea of putting him on trial for a felony and locking him away in a prison will come
to seem more and more absurd.
Right now, across the political spectrum, people view Daniel Ellsberg as a hero and
an icon, but really what separates Daniel Ellsberg and Edward Snowden is time.
At the time of the Pentagon Papers, the leak, the attacks on him were just as vituperative.
There were people who accused him of having dropped off the Pentagon Papers at the Soviet
Embassy.
He was called a traitor.
He was called a spy.
The Nixon administration used dirty tricks against him.
They broke into his psychiatrist's office.
They tried to discredit him.
Now he has this halo over his head.
If there's a difference between Snowden and Ellsberg, and Ellsberg would be the first
person to say this, it's that Snowden's disclosures have been much more consequential.
They didn't come two-thirds of the way into a failed war.
They came at a time when it's not too late for us to implement genuine and deep reforms
and to reverse a very disturbing direction in the creeping towards a surveillance state.
Already in the last year, we've seen changes by technology companies.
We've seen changes by government.
I think we're still at the beginning of this debate.
I really believe that there will be a time when, again, the idea that what Snowden did
was heroic will be much more mainstream than it is right now, but it might take us a while
to get there.
I wanted to point out that we have another whistleblower coming to Hope-X, and that is
Thomas Drake, who is the first whistleblower to be prosecuted for espionage since Daniel
Ellsberg.
Of course, you've been in touch with your client.
Well, that's right.
He was over there as well.
They were able to meet face-to-face, and certainly what happened to Thomas Drake, the way that
he was-
I think that Hope is actually kind of hitting the espionage trifecta, I call it.
We're going to have three whistleblowers who were charged with espionage by the U.S. government,
two of whom the charges were dropped against.
Yeah, and let's hope that we can get to three.
Exactly.
That's what we're hoping for.
Well, actually, Ben, I wanted to ask you about that because Daniel Ellsberg did, in fact,
go to trial.
He did.
And he won.
What has changed where he was able to?
Let's actually be really clear about what happened in Daniel Ellsberg's trial.
In fact, Daniel Ellsberg was the first person ever to be charged under the Espionage Act
for providing information to the press instead of to an enemy.
Daniel Ellsberg took the stand in his defense.
He was asked by his lawyer, and this had been a rehearsed give and take, why did you do
it?
Now, the government objected and said it was irrelevant, that his motives had nothing to
do with his guilt or innocence.
The judge sustained that objection.
That testimony was excluded.
Now, before this trial could reach its conclusion, the judge dismissed the entire case on the
grounds of outrageous government conduct because the Nixon administration had offered the judge
the job of FBI director in the middle of the trial in an attempt to influence the outcome.
So, in fact, Ellsberg may well have been convicted, but for how outrageously the Nixon administration
had behaved in that case.
So, although that case did go to trial, we have no precedent from it.
There was no acquittal.
There was no conviction.
The charges were dismissed for reasons that were unrelated to the actual specifics of
the government's case.
Well, if Daniel Ellsberg did what he did today, do you think it would be monumentally different
what would be facing him?
It's a good question.
I mean, one thing that Daniel Ellsberg said to me is that one difference is that after
he turned himself in, he was released on bail.
So, he spent the two years between the time that he turned himself in and the time that
the charges were dismissed living freely, speaking at events, being a citizen in the
community.
If Snowden were in government custody, he would disappear into the same kind of hole
that Chelsea Manning did where there would be very, very limited contact even with counsel
and family and certainly none with the press and the public.
It's a different time in 2014 than it was back in 1970 or 71.
And lots of really huge corn-fed military police around him.
Well, I guess they wouldn't be military police in Snowden's case.
He would be in a federal penitentiary rather than a military one.
But I think all things considered, I might prefer a military one.
Well, now, the other issue, of course, that a lot of people are concerned about is his
future in Russia.
Is he in danger of being ejected at some point, of having his visa run out?
It's impossible to say anything with absolute certainty.
What I can say is that we're very confident that he'll be able to stay there as long as
he needs to stay there.
And this is based on statements that high government officials, including the president
there, have made that he's welcome to stay there for as long as he wants to.
Again, our hope is that it won't be forever.
Our hope is that he can return to the U.S., if that's not possible in the near future,
that some other country will see a way to being able to host him, whether it's a country
like Iceland or somewhere in Latin America.
Of course, getting there would be an issue if the U.S. remains opposed to it.
But I do think that his situation is stable in Russia.
He does have freedom of movement there.
As you've seen, he doesn't only criticize the United States.
He's actually been quite critical of the Russian surveillance system, too, wrote an
op-ed in The Guardian in which he essentially called Putin a liar for something that he
said about surveillance.
And in his interview with Brian Williams for NBC, was very critical about Russian censorship
laws with respect to social media.
So he's living and speaking and moving freely.
Having said that, he doesn't think it's the ideal place for him to be.
We work every day for better outcomes.
Well, and it certainly makes the United States look bad when Russia is the one keeping somebody,
a whistleblower, free from prosecution like this.
I think so.
I do hope that people can separate the issue of asylum from the actions of a government.
Keep in mind that in 2002, 2003, 2004, many thousands of people sought and received asylum
in the United States because they were fleeing persecution and torture in their home countries.
Most of them did not then go out and say, I won't be in America because of Abu Ghraib
or because of the CIA's rendition program and the black sites.
They said, I'm glad to be here because I'm safe and I'm free from persecution in my own
country.
So I do think that I understand the irony of someone who is anti-surveillance, pro-liberty,
being housed in a regime like that and how the optics of that must seem to many people.
But at the same time, people who come to the U.S. fleeing persecution are not endorsing
the U.S.'s drone strikes abroad when they come here seeking refuge.
I think the paradoxical nature of that actually speaks to the complexity of the situation
in general.
Yeah, I think so.
I really do.
I mean, I think the other thing is that in no way is he suggesting that Russia's system
is on par with or let alone superior to ours.
His message is these are the reform steps that we need to take if we want to preserve
our free societies.
And again, the fact that he has to deliver that message from where he is is one of those
historical and political ironies, but that's all it is.
Yeah.
Yeah.
And it's part of that awareness, like people need to hear that things are not always what
they seem even at home.
And that, I think, is the big message and what has propelled the larger discussion in
our mainstream and the mainstream around the world.
Well, it's one of those things that people don't want to hear that happens to be the
truth.
Yeah.
Yeah.
We have a very hard time seeing ourselves the way others see us.
We really do.
I think this is true in many countries, but it's certainly true here.
We're raised to think that America is special, and it is in many, many ways.
But certainly the way that it has acted abroad in the last decade and a half has been absolutely
atrocious.
I mean, we've been really one of the world's human rights offenders.
And that's why, I mean, I hear people demanding that the rule of law be followed, that he
come back and face the music.
These are the same people who authorized torture, who set up secret prisons, or who enabled
that, or who defended that.
How many people who were involved in the torture, including the torture to death of prisoners
during the Bush administration, have been prosecuted for that?
Certainly no senior official has.
And these are the people who are saying right now that if we don't apply the full force
of the law against Edward Snowden, how will we deter future abuses?
Well, how are we going to deter future torturers?
How are we going to deter future murderers?
I really, I take it with a huge grain of salt when I hear the National Security Priesthood
on their high horse about Edward Snowden.
So Ben, one thing that might deter future leaks of this nature is a robust protections
for whistleblowing internally.
And we've heard people say that Snowden should have tried to contact the, I don't know, the
NSA inspector general or something.
What do you make of that suggestion?
I think your laughter gives the answer, but do you think there's any hope for progress
on that front?
Well, listen, I have lots of hope.
I always have lots of hope.
Whether I think that there are short-term realistic prospects is a different question.
I also think that people misapprehend what it is that Snowden did.
There are times when whistleblower, and maybe Thomas Drake is a good example of this, encounters
something that is clearly fraud, waste, abuse, illegal misconduct, something that may not
be known to everybody in the oversight community.
And in those cases, you know, we can talk about what protections that could be put in
place for someone like that, to be able to go to Congress without fear of being charged
under the Espionage Act.
You know, what Snowden encountered something quite different.
It wasn't some isolated incident of fraud or waste or abuse or illegality.
It was an entire regime of surveillance that had been promulgated and approved in secret
and that was known to the oversight mechanism, had been approved by the Secret Foreign Intelligence
Surveillance Court, had been briefed to the Congress's intelligence committees.
What was he supposed to do?
Call up the Senate Intelligence Committee and say, hello, I'm a 29-year-old contractor
and I'm calling to report to you about programs that you've approved in secret.
You know, the problem wasn't that they didn't know.
The problem was that they did know and hadn't done anything about it.
So what was necessary for Snowden was not to alert a judge or a member of Congress,
but to bring the public into the debate.
And isn't it remarkable what happens when the public is brought in?
You know, now these programs that were approved in secret are being questioned by all three
branches of government.
You now have judges who are, for the first time, questioning the legality of these programs.
You have historic bipartisan legislation in both houses of Congress that would reform
these practices.
The President has appointed review panels that have concluded that the NSA was out of
control.
So I don't think that there is a tweak in the whistleblower laws that would wholly protect
someone like Edward Snowden.
I think that he is a, this is a very singular case.
It's why I think that pardon or amnesty or clemency would be appropriate here.
What he did is, ironically, go outside the system in order to revitalize the system.
We now have some of the most energetic oversight from the courts and Congress that we've seen
in a generation.
And it took somebody to break the law in order to vindicate the law.
So we certainly need more robust protections for whistleblowers.
I'm not sure any of the proposals out there would wholly protect an Edward Snowden.
I think this is one of those times where we need to exercise the discretion to understand
that what he did was important and to give him amnesty.
So where does this leave, say, a whistleblower today?
Say someone listening to this right now is sitting on something.
They want to blow a whistle on it.
But they see what happens to Private Manning, to Edward Snowden.
What should they do now?
What they should do is really a question for their own conscience.
I mean, I will say this.
Our democracy has always depended on unauthorized disclosures to the press.
All the things that I've been talking about over the last half an hour, torture at Abu
Ghraib, the CIA's black site, NSA surveillance, none of these things would be known to the
public if everyone inside the system had respected the classification system and had not shared
information without permission with the press.
Having said that, it's a tremendous risk to do what Snowden did, to do what Manning did,
to do what Ellsberg did.
And probably people need to be prepared for the possibility that the consequences will
be very, very dire.
Now, for most people, no criminal prosecution threat is even necessary.
Most people who are in the system understand that if they lose their security clearance,
they won't ever be able to work in their field again.
They might lose not just their job, but their social connections, in some cases their families.
It's very, very hard for people to do what these people do.
And I can't, sitting where I sit, tell anybody that it's their obligation to give up their
own life in exchange for this kind of principle.
I think that what we can do, what Freedom of the Press Foundation can do, what other
organizations like that can do, is they can try to make it safer for people to share information
with the press without detection.
But everyone has to make that risk determination for himself or for herself.
We're speaking with Ben Wisner, Edward Snowden's attorney.
And Ben, I just wanted to ask you, there has been some criticism of the way in which these
leaks are being released by journalists.
Some people want them all at once.
They want everything.
Yeah.
What do you say to people like that?
Well, I think it's a valid opinion.
It's not the way Snowden wanted the journalists to do it.
My own view is that it would be a worse way for the information to be communicated.
Remember, we're not talking about a series of memos that say, you know, from Keith Alexander
to NSA employees, you know, with clear instructions about what they should do, or even court orders.
We're talking about very, very complex and technical documents, PowerPoint presentations,
things that, you know, I've discussed this with Bart Gelman from the Washington Post.
You know, he wrote a story about an NSA program called Muscular, in which NSA was, you know,
essentially breaking into transmissions between Google and Yahoo's data centers overseas and
finding the weak points where data was not encrypted and siphoning it off.
There was no document, he said, that laid out what it was that the NSA was doing.
It was 15 different documents, as well as a bunch of other reporting, talking to people
in tech companies, talking to people in government that allowed him and the technologist that
he was working with, Ashkan Sultani, to piece together what that program was.
It's very, very difficult stuff.
In order to figure out what it is and then translate it to a general public, it really
requires a lot of work and care.
And, you know, I think that there are certainly things in the document that were necessary
for context for the journalist that shouldn't be published.
You know, so, for example, Bart Gelman wrote a story in the Washington Post over the weekend
about how much incidental, so-called incidental collection takes place during surveillance.
He had access to 160,000 private emails that had been sucked up by the NSA.
Do people really think that those email addresses and those emails should just be published
without redactions?
That all of that private information that the NSA probably shouldn't have had in the
first place should be dumped on the public?
You know, my view is that balancing the public's right to know with the privacy rights of the
people whose names are in those documents is a delicate task, and it's something that
takes a lot of time.
Now, I wish that the organizations that were doing the journalism on this, Glenn Greenwald's
organization, The Washington Post, The New York Times, The Guardian, and others had more
resources.
I wish they all had more reporters who could do this.
I wish they could work through this stuff, you know, with greater speed, and I think
that the journalists who are working on this are sensitive to those critiques and would
like to get these stories reported faster.
I agree with their view that it would not serve the public interest if they simply dumped
all this information online.
But I think your point to do it sloppily and hastily would draw away from the actual revelations
and constructions of what these different programs are that the journalists do.
If they are careless in any way, then what they've actually built to present to the public
about the institution is kind of lost, and then maybe other entities or the government
themselves maybe come in and point or shine a brighter light on the way it was handled
versus the actual point of what the journalists say.
I think so.
That's a good question.
But I also think that there is a role for people who are very impatient about the pace
of disclosures to play right now.
We've now had the publication of hundreds of documents.
Some of them are very, very complex.
A lot of the stories that have been written about them were written hastily in the beginning.
I think that there is more crowdsource intelligence that could be brought to the documents that
have already been published, rather than just clamoring for the next one.
Go back.
Dig more deeply into the documents that describe X-Key Score, that describe Bull Run, that
describe Muscular, that describe all of these NSA and GCHQ programs that are quite technically
complex.
I'm sure there are people in our community who could bring and shed more light on this
by going back over what's already been published.
I don't mean the articles.
I mean the documents themselves and seeing if they can illuminate that.
I'd like to draw a kind of a strange parallel to this.
People today, with their MP3 devices and access to everything all at once, are able to instantly
download, say, a library of an entire musician or a band or whatnot, and they can listen
to everything in one day, as opposed to the way it originally came out, which was separated
by however many months or years, where they had a chance to actually appreciate the music,
analyze it, look forward to the next one.
Not comparing Edward Snowden's releases to rock albums, but what you say about actually
reading them and paying attention to them, I think that would be lost if they were all
just dumped on us at once.
We would tend not to.
I don't remember how exciting it was when a new record used to come out.
Absolutely.
It's the right pace.
I mean, I was growing up in the 70s and 80s.
It was like the best thing when somebody's new album would come out.
Yeah, you'd be waiting for it.
If you knew that there was going to be a new Snowden document next Tuesday, that gives
you something to look forward to, but not to make light of it, because these are really
serious issues that are being...
They are, and I also just want to make clear that the pace of...
Although Snowden gave general instructions to journalists about how he would like to
see them apply their craft, he has nothing to do with the pace of disclosures.
He gave things to journalists all at once.
They're making the decisions about when things will be published and what will be published.
He's not pulling the strings.
It doesn't mean that he's not involved in some of the stories.
I mean, for some of these, because the information is so complex, the reporters rely on him as
an expert to explain what some of the documents mean, and so he has been in touch fairly regularly
with some of the journalists in that role, but he is not sitting there doling these out.
Those decisions are being made by reporters and news organizations.
He's not in the streets of Moscow handing out state secrets like candy to children.
No, and the U.S. government knows that.
For all of their public statements, the U.S. government is still awfully good at intelligence.
They still have incredible signals, intelligence.
They still have a lot of human sources, and the U.S. government knows full well that Russia
and China are not in possession of the information that Snowden gave to journalists.
They know it in a thousand ways.
We've talked about the evolution of public opinion and political action, which I'm not
sure how sincere the political action actually is, but what about mass media?
Have you seen that evolve in their coverage over the last year?
I think so.
I mean, I've been saying this, and I wonder if you guys agree, that I think this has been
an amazing year for journalism.
I think a lot of the credit goes to Glenn Greenwald, because he was so aggressive, so
fearless, showed such appropriate scorn and derision for the overbroad claims of the national
security state that he essentially forced all of these other news organizations to change
their game.
Remember, in 2004, the New York Times sat on a critical NSA story for 14 months about
how the NSA had essentially disregarded the Foreign Intelligence Surveillance Act, and
it was doing massive spying on American citizens without any warrants whatsoever or any grant
of authority from Congress.
And the New York Times probably...
They sat on it probably through an election as well.
Yeah, they probably never would have published it except that one of the authors, James Risen,
was about to publish it in a book, and that forced the New York Times...
After the election.
After Bush was re-elected.
That's right.
Yes, yes, yes.
That's a good point.
No, I mean, this was...
And Snowden had that in mind when he chose Glenn Greenwald and Laura Poitras instead
of James Risen, not because he didn't trust James Risen.
James Risen is a remarkable and courageous journalist who's willing to risk going to
prison to do his work, but because he didn't trust the New York Times.
But then a funny thing happened.
The Guardian and the Washington Post essentially pushed the New York Times to try to get in
on the game, and they got their hands on documents from the Guardian, and they've done some fairly
aggressive reporting on this too.
And I think in general, it sort of pierced this bubble of...
I was talking about a related phenomenon earlier.
I think that so often with these stories, the government goes to news organizations
and says, do you want to be solely responsible for killing thousands of women and children
by publishing this story?
And you have to have a lot of guts as a news organization to disregard that kind of warning
coming from security officials.
But I think that the government cried wolf one too many times.
And just seeing Greenwald and the Guardian and now The Intercept being so aggressive
has, I think, given more muscle, more courage to other news organizations.
So in addition to basically encouraging people to speak the truth and to be whistleblowers
whenever possible, Edward Snowden has, in effect, rejuvenated journalism.
Isn't that something?
Yeah.
It really is.
Yeah.
And I mean, we're now seeing new news organizations come into being because of the Snowden revelations.
And who knows what the future of First Look will be?
They certainly have the resources and the talent to be a permanent fixture.
Yeah.
Can you tell us something about that?
Say it again?
Can you tell us something about that?
Yeah.
So First Look is a new media organization that is underwritten by the eBay billionaire
Pierre Omidyar.
Omidyar essentially was so impressed by the Snowden revelations and by Greenwald's journalism
that he got together with Greenwald and Poitras and Jeremy Scahill, another excellent investigative
reporter, and they came up with a plan to create a new online journalism entity.
You know, so far, it's only launched partially, a part called The Intercept, which was created
so that some of the Snowden documents could be reported on.
But I think that they have a plan to really build it out.
And they're coming to Hope as well.
Say it again?
They're coming to Hope.
Bernie, who isn't coming to Hope?
I mean, literally, the last hour...
I just listed a bunch of really renowned news organizations a minute ago.
Every one of them is coming to Hope.
They're all out.
Can we get a bigger hotel?
What's that?
With a hotel, yeah.
Yeah.
We're going to outgrow that hotel.
We're going to need a bigger one for The Next Hope.
Yeah.
We're going to be spilling out onto Seventh Avenue.
There's no question about that.
Maybe we can take over Matt at the Square Garden across the street.
We might have to.
And Michael Lee from First Look is coming.
Great.
Yeah.
Michael Lee is another one of these terrific public interest technologists who's doing a
lot of critical work on security to make it safer for investigative journalists to communicate
with sources.
And one of the reporters that Ed Snowden leaked documents to is also coming, is that correct?
Mark Ellman.
Okay.
From the Washington Post.
Oh, that's terrific.
Yeah.
Yeah.
I mean, again...
We have a laundry list of some highly renowned journalists, world-renowned journalists, first
class journalists coming to HopeX.
This is going to be covered better than all the other Hope conferences combined, so I'm
glad...
It's sold out, isn't it?
Not yet, but it's going to be.
Are you kidding?
I don't know when sold out actually is.
We have to look at...
We have to basically come up with a number and decide.
Is it possible that there's anybody listening to this show who hasn't bought a ticket yet?
Yeah, it's possible, because this show gets passed around.
Hope.net is the website, and yeah, you know, next week we will definitely have pre-registration
closed, but we might have to close it a lot earlier if things keep going the way they're
going.
Yeah.
I'll tell you what we are...
If you're listening now, or if you listen to it as a podcast or whatever, get online
now and buy a ticket, if only to see the historic conversation between Ed Snowden
and Dan Ellsberg.
But there's a lot of other incredible stuff going on there.
I'll tell you what we are out of, though, is the press passes.
I think we no longer can grant admission to journalists, so...
Yeah, it got a little out of hand.
Every journalist in the world seems to want to...
Journalists can still come to the conference, but they have to get a ticket.
And we should also point out, and I think this is important, that Ed Snowden will be
speaking with Daniel Ellsberg.
Ben, maybe we should talk to us for a second about what this will not be.
This will not be a press conference where a journalist will be shouting questions over
to Moscow or wherever Snowden actually is.
This is a conference for our attendees, and they're here to listen, to learn, and if anyone
asks questions, they would be the first ones to be able to do that.
I think that's right.
I think that's right.
I do think that this is an amazing opportunity to hear these two people interact with each
other.
I think parts of the format may still be up in the air a little bit, but as you said,
the point here is not for reporters to stand in the front row and to fire questions at
Ed Snowden.
That's not what he hopes to get out of this.
He's hoping for a very elevated and high-minded conversation.
And he chose the Hope community because it's really his people, people who combine technical
savvy with principle, people who think that this isn't all a game, technology, but it's
something that is really tied to our future and to our liberty and needs to be used in
the right way and not the wrong way.
Well, Ben Weisner, this hour has shot by.
You were originally just supposed to be on for a half hour, but wow, so much to talk
about here.
We could keep going.
Final question, what can people do to help with Ed Snowden?
And any contact info you want to give out?
Well, if people want to contribute to a defense fund, some of the lawyers, and of course the
ACLU's representation of Snowden is without charge.
We don't charge clients, but there are lawyers on the team who aren't able to participate
that way.
There are lawyers in Europe.
And so there is a new website, edwardssnowden.com, where people can make contributions to the
defense fund.
But I think more important than contributing to his defense fund is being engaged.
What Snowden said a year ago is that his biggest fear was that he had taken all this risk for
nothing, was that people would receive this information and that they would yawn and that
they would move on.
I think that didn't happen.
The opposite has happened.
We've seen this remarkable global debate, but it's not something that people can be
passive about.
People need to be very engaged citizens in whatever way, whatever shape or form that
takes for them, whether it is doing online activism, whether it is being in touch with
members of Congress.
I think there are a lot of ways for people to be involved.
Okay.
Thank you so much, Ben, for all you've done.
And we definitely look forward to Saturday the 19th, Ed Snowden speaking at the HOPE
conference.
Again, hope.net for more information on that.
Write to us, oth at 2600.com if you have any feedback on Off The Hook.
We will see you again next week.
Have a good night.