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Snowden's Common Law Defense

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The U.S. Senator who divulged the Pentagon Papers in Congress says Edward Snowden and other citizens with access to classified information should have the same immunity as members of Congress to make public secret documents exposing government wrongdoing.

Before Daniel Ellsberg, American's most important whistleblower until Snowden, leaked the Pentagon Papers in 1971 to The New York Times and The Washington Post, he went to Congress to find a Senator willing to make the Papers public.

Several turned him down, including George McGovern, who was worried what it would do to his presidential chances the next year. Eventually a freshman Senator, Mike Gravel of Alaska, agreed to take them.

From Mike Gravel
Mike Gravel by Wikipedia

With publication in the Times and Post shut down by the Nixon Justice Department's prior restraint, Gravel read the top secret Papers in a Senate hearing on June 29, 1971. He did so on the basis of a clause in the Constitution granting immunity to members of Congress to legally reveal classified information.

Article I, Section 6, Clause 1 of the U.S. Constitution, the so-called Speech and Debate clause, gives immunity to any member of Congress to avoid questioning about anything said in the course of a legislative act.

But when Gravel went to Beacon Press in Boston to publish the Papers as a book, Nixon sought his indictment. The Supreme Court unanimously upheld Gravel's right to reveal classified information in the Senate. But it ruled he couldn't bring it to an outside publisher. Nixon could have, but didn't, pursue charges for this against Gravel.

I tell the full story in the book I authored with Senator Gravel, A Political Odyssey, published by Seven Stories Press, with a foreword by Ellsberg. It is relevant today because Senators Ron Wyden and Mark Udall on the Senate intelligence committee say they had concerns about the National Security Agency surveillance programs but couldn't go public with the classified details. It's a point of view widely reported in the press.

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"Yet shackled by strict rules on the discussion of classified information, Mr. Wyden and Mr. Udall, members of the Senate Select Committee on Intelligence could not -- and still cannot -- offer much more than an intimation about their concerns," The New York Times writes. "They had to be content to sit in a special sealed room, soak in information that they said appalled and frightened them, then offer veiled messages that were largely ignored."

Unless Wyden and Udall thought they would commit a felony or treason (which are exceptions to immunity), the Gravel case proves this is wrong. Indeed some U.S. leaders have accused Snowden of treason for revealing the same information. But there has to be "adherence to the enemy" and "intent to betray" the United States, for it to be treason. (Cramer v. U.S. 1945)

"These well-intentioned people are gutless," says Gravel, 83 and living in Burlingame, California. 
"They were put on the intelligence committees only to be silenced. They should tell everything they know and resign from the committee. Screw it. What's so important about being on the committee when you are talking about principles of democracy?"

Being one of the few Senators ever to exercise the right, Gravel is indignant that Wyden and Udall did not seize the same privilege.

"Is their position more important than the people knowing the facts? What is the point of having power if you don't use it?," he says. "Where is the courage? Where is the leadership in this country?"

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Snowden and Bradley Manning, the U.S. soldier on trial for leaking evidence of U.S. war crimes to Wikileaks, are providing that leadership, he says. Because of their courage he argues that they deserve the same immunity as Congressmen.

The precise language in Article One, Section Six of the Constitution says members of both U.S. Houses: "Shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."

The clause derives from the 1689 Bill of Rights protecting Members of Parliament speaking against the monarchy while in Parliament. Stuart kings had hauled many MPs into jail for speeches made on the floor.

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Joe Lauria has been a independent journalist covering international affairs and the Middle East for more than 20 years. A former Wall Street Journal United Nations correspondent, Mr. Lauria has been an investigative reporter for The Sunday Times (more...)

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