Edward J. Snowden

Jesselyn Radack

I joke that I use drug dealer tactics. It’s a terrible way to work as an attorney, but you have to.

Jesselyn Radack, the national security and human rights director for the Government Accountability Project, commenting on the lengths to which she must go to protect her most famous client’s secrecy.

Radack represents Edward Snowden, and in her dealings with him she has abandoned WiFi — it’s too insecure — and used burner phones and two laptops (one of which is encrypted). She accepts only cash payments and will discuss his case only in person.

As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.

Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:

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Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

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Glenn Greenwald

I have lawyers who are extremely well-connected at the Justice Department who usually can, with one phone call, get [Attorney General Eric] Holder on the phone. And they actually have gotten the people they wanted to get on the phone. And those people have been very unusually unforthcoming about what their thinking is or what’s happening, even to the extent of not being willing to tell them whether there’s already an indictment filed under seal or whether there’s a grand jury investigation…. [T]hey clearly want me to linger in this state of uncertainty.

– Lawyer turned journalist Glenn Greenwald, famous for his reporting on NSA surveillance, discussing with GQ the legal limbo he finds himself in.

(What Greenwald thinks about Hillary Clinton — hint: he’s not a fan — after the jump.)

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In too many ways, 2013 was a year that vindicated the long-standing paranoia of many Americans, particularly the more conservative. A bewildering number of stories littered the news that seemed to confirm exactly the sort of gross government overreach that previously sounded like a delusion of someone whose eyes were scanning the skies for black helicopters. In spring 2013, for example, we learned that the IRS had been targeting the 501(c)(3) applications of conservative and libertarian organizations, apparently based solely on their political and philosophical affiliations. Nothing in 2013, though, fanned the flames of political paranoia quite like revelations of the National Security Agency’s mass surveillance programs.

In Clapper v. Amnesty International USA, decided in February, the U.S. Supreme Court dismissed Amnesty International’s constitutional challenge to a portion of the FISA Amendments Act of 2008. In its 5-4 opinion, the Court found that Amnesty lacked Article III standing, in part because the plaintiffs could not show that they had necessarily been targeted for surveillance. When Edward Snowden later disclosed details of the NSA’s PRISM surveillance program, civil libertarians experienced something of a Pyrrhic victory. Standing would not be a problem in many future lawsuits because the revelation of PRISM established that millions of Americans had been subject to some NSA spying. The only question was whether that surveillance amounted to a violation of the law.

As we leave 2013 and 2014 dawns, some new developments have emerged . . . .

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There is a tension between laws that encourage individuals to blow the whistle on government wrongdoing and laws that impose the harshest civil and criminal penalties for disclosing secrets. Whether one considers mega-leakers Bradley Manning and Edward Snowden to be heroes or traitors, the legal implications of their cases are undeniably fascinating.

On September 18 at 7 p.m., ATL is hosting a free networking cocktail reception in New York, where we’ll discuss the recent leaks of U.S. government data. Our special guest will be criminal defense and whistleblower attorney John Howley, who will examine how the law has been applied in controversial cases from Daniel Ellsberg to Snowden and Manning. Gain an appreciation for the complex ethical issues lawyers face when advising and representing whistleblowers and alleged traitors.

Please join us on September 18 by RSVPing for the reception below (and/or the pre-reception CLE course that starts at 5:30 p.m.):

The event is sponsored by our friends at Access Data with support from Lateral Link and Learnvest.

There is a tension between laws that encourage individuals to blow the whistle on government wrongdoing and laws that impose the harshest civil and criminal penalties for disclosing secrets. Whether one considers mega-leakers Bradley Manning and Edward Snowden to be heroes or traitors, the legal implications of their cases are undeniably fascinating.

On September 18 at 7 p.m., ATL is hosting a free networking cocktail reception in New York, where we’ll discuss the recent leaks of U.S. government data. Our special guest will be criminal defense and whistleblower attorney John Howley, who will examine how the law has been applied in controversial cases from Daniel Ellsberg to Snowden and Manning. Gain an appreciation for the complex ethical issues lawyers face when advising and representing whistleblowers and alleged traitors.

Please join us on September 18 by RSVPing for the reception below (and/or the pre-reception CLE course that starts at 5:30 p.m.):

The event is sponsored by our friends at Access Data with support from Lateral Link and Learnvest.

The administration wants Snowden back badly enough that it has let this singular aspect cloud its judgement. Obama recently stated he won’t be meeting with Putin, stating Russia’s harboring of Snowden as a factor (rather than Russia’s multiple issues with human rights). Rather than engage in the debate Obama claimed he “welcomed,” the administration is circling the wagons, as evidenced in the petty statement it issued in reference to Rep. Justin Amash’s NSA-defunding amendment. Don’t govern angry, as they say.

There are plenty of people who believe Snowden is a hero. Many others believe the opposite. The problem is the middle ground is pretty much nonexistent. Allowing Snowden to go free would appease the former, but allow him to continue exposing the NSA’s surveillance programs. Locking him up wouldn’t do much either, other than allow the government to avenge its embarrassment. It won’t stop the leaks, however, at least not if Snowden’s “dead man’s switch” works as intended. The Guardian is already in possession of thousands of documents. Capturing Snowden will only hasten their release.

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* With a sharp focus on the Supreme Court and the legal definition of equality, only one thing’s for sure with respect to this week’s anticipated rulings: at least one group of people is probably going to get screwed. [New York Times]

* And lest we forget, thanks to our society’s near slavish obsession with social media and knowledge on demand, we’ll salivate uncontrollably as we wait for those opinions while the justices blissfully ignore new technology. [New York Times]

* The Justice Department charged NSA leaker Edward Snowden with espionage, and now he’s pursuing political asylum in Ecuador with the assistance of legal counsel representing WikiLeaks. [NBC News]

* Biglaw firms are trying to strengthen their pricing power in a post-recession world, with average rate increases of 4.8% in 2012, and hourly rates soaring in New York City. [Wall Street Journal (sub. req.)]

* There were some bright spots in the otherwise dismal NALP job numbers for the class of 2012. Biglaw hiring is up, and so are median starting salaries. Sallie Mae is pleased as punch. [National Law Journal]

* If you’re considering law school, ask yourself these questions before applying. You should also ask yourself if you’re cool with unemployment. [Law Admissions Lowdown / U.S. News & World Report]

* Richard Trenk, author of the “ham-fisted” cease-and-desist letter that’s been read around the world, has been honored as the New Jersey Star-Ledger’s “Knucklehead of the Week.” Congrats! [Star-Ledger]

* There’s no solace for people who have had to pay to have their mug shot “depublished” from the internet. Sorry, the First Amendment allows people to turn a profit off your misery. [Washington Post]

* This lawsuit over unpaid internships filed against Gawker will sting any gossip girl’s heart to the core. But really, isn’t the privilege of working for Gawker enough? This fangirl thinks so. [New York Post]

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