It was adopted after the Speaker, Sir William Williams, was fined for libel for a privately-published report criticizing Charles II. The Bill of Rights guaranteed freedom of speech and debate in Parliament "for the sake of one... Sir William Williams, who was punished out of Parliament for what he had done in Parliament."
It was a milestone in the ascendance of Parliament over the monarchy. But Colonial American assemblies continued to dispute with royal governors the right to criticize the Crown. After the American revolution, James Madison put the clause in the U.S. Constitution as a "practical obstacle" to separate powers.
Gravel is reaching back into English legal history to argue for extending this immunity to all American citizens, including Congressmen outside of a legislative act.
"It's common law going back to the British system," Gravel said. "As a citizen, if you see a crime being committed you have a responsibility to stop the crime. Is that not conventional wisdom in the United States?"
Both Snowden and Manning witnessed crimes and had a duty to speak out, he says. Defenders of the NSA programs say the Patriot Act makes them legal, though whether they violate the Constitution's 4th Amendment against unwarranted searches and seizures will be decided by the courts after a lawsuit lodged by the American Civil Liberties Union. Other suits may follow.
"Does a bad law enacted by a Congress with a 13 percent approval rating trump the Constitution?" Gravel asks. "Only for the people who benefit from that interpretation. The issues are beyond representative government and found in common law. I had protection in Congress to stop a crime, and that crime was not letting the people know the Government was lying to them about continuing the Vietnam War. Keeping the people uninformed destroys democracy, what little of it we have."
In fact English common law includes a class of offenses known as "inchoate crimes," including becoming accessory to a crime after the fact for failing to report it. These have been incorporated into American common law in some jurisdictions. This raises a possible defense for Snowden, and indeed for Manning, on the grounds that they would themselves be committing a crime by not reporting alleged government criminality.
Misprision, or failure to report felonies or treason, has been part of U.S. federal statutory law since 1790. Subsequent court rulings have defined it to include an act of concealment of a crime. (In a twist, McClatchy reported that the Obama administration has instituted a type of misprision program itself called Insider Threat. It requires federal employees to watch their co-workers and calls on managers to punish those who fail to report suspicious behavior.)
"Any citizen under common law is duty bound as a citizen to protect the polity of society by revealing a crime that will in effect stop it," and this should be Manning and Snowden's defense, Gravel says. Both took oaths in the military to defend the constitution.
Though Manning is a solider under trial in a military court it "does not trump his civic responsibility in common law," Gravel says. "Bradley Manning has witnessed a crime" -- the video evidence to Wikileaks showing U.S. airmen killing 12 Iraqi civilians.
"Manning understands the Constitution better than the president, who is supposed to be a constitutional scholar," said Gravel, who ran against Obama in the 2008 Democratic presidential primary. "Obama took an oath to defend this country from without or within. And what is happening to this country is happening from within."
Manning's defense team tried to introduce the Nuremberg Principles into trial, which require the reporting of an alleged war crime. But the court threw it out.
Gravel thinks the entire case against Manning should be thrown out on the grounds of unlawful command influence. "Keep in mind that from the get-go Obama, as commander-in-chief, publicly made the statement that Bradley Manning is guilty," Gravel says. "Now if that is not command influence, I don't know what is."
But the military has to "prosecute him and nail him to the cross so they can intimidate all of the possible whistleblowers with the threat of the Espionage Act."
Manning is among a handful of people prosecuted under the 1917 Act, which has been used by Obama seven times, more than any other president. Snowden is the latest. Ellsberg was among the first. He was arrested shortly after giving the Papers to the press and to Gravel. But his trial was dismissed on prosecutorial misconduct when it was revealed that much of the evidence against him was obtained by burglarizing his psychiatrist's office. It was later known that the judge had also been promised the job of FBI director after Ellsberg's trial.
The Manning trial is in a sense a continuation of Ellsberg's, Gravel says. "Had they convicted Ellsberg, which was the plan, he would have probably appealed to the Supreme Court. Then we would have had that courageous body with black robes having to decide whether these people are truly committing espionage."
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