Chicken, Egg and Due Process of Law

If you consider, more or less at once, two recent media subjects about young American men abroad, you will most certainly suffer disorientation such that you cannot see your moral compass – if you have one. Certainly, you cannot quickly conclude from what you see and hear that those conducting the debate are American.

Edward Joseph Snowden, at age twenty nine, allegedly walked away from his job as a defense department contractor with gazillions of American intelligence secrets. He managed to get to Hong Kong and from there to Moscow, where he is now living while Russian authorities are ignoring United States demands that he be extradited back to this country for prosecution. It is the Government’s belief that Snowden has committed serious crimes and damaged American security interests.

Snowden first revealed what he had done to journalist Glen Greenwald, then at London’s Guardian newspaper. Greenwald remained in touch with Snowden and has served to trumpet the claim that Snowden is a hero for exposing the pervasive and widespread spying by the United States National Security Administration. Many on what might be called the American left enthusiastically endorse the notion that Snowden is a latter day Daniel Ellsberg – a patriotic hero. Indeed, many have suggested that Snowden be granted amnesty from the crimes he is alleged to have committed. Snowden has now released statements in which he insists that his disclosures were in the national interest and Greenwald has published a book that apparently details that claim.

Bowe Bergdahl is just a year or so younger than Snowden, but is an American soldier who was held captive by a sect of the Taliban in Afghanistan for five years. Bergdahl was released as part of a trade for five supposed terrorists being held at the American prison at Guantanamo Bay, Cuba. At this writing, Bergdahl has not made a public statement, appeared publicly or through a spokesperson – he’s apparently under medical and/or psychiatric care and has been since being turned over on the plains of Afghanistan.

Although initially happy with the release of Bergdahl, the Republicans in Congress have done a complete turnaround and are savagely critical of the release of Bergdahl because (a) the White House failed to notify Congress in advance of its intent to exchange five inmates from Guantanamo, and (b) the released inmates are so dangerous that their release could never justify the recovery of an American soldier. Additional criticism of the exchange arises because of the claim by some – mostly those with whom he served at the time of his capture by the Taliban – that Bergdahl didn’t deserve to be recovered or considered a hero because he left was a deserter or, at least, he criminally left his post in a war zone.

The common element in both these stories is the mad, noisy and endless declarations that appear in the media concluding the right or wrong of either man’s position without any consideration for due process of law. That dearth leaves the field open to speculation as to whether either man is a cowardly criminal.

Unsworn opinion testimony is not admissible as evidence in an American court of law, unless as an admission against the interest of the speaker. What that means is that we cannot reasonably reach a conclusion about the cowardice, bravery or guilt or innocence of either man based on anyone’s unsworn opinion. To be sure, reducing the question of either man’s guilt or innocence to such mundane procedures as a trial would eliminate the means by which many a bloviator makes his living, but it would serve this Country and both men much better than what is going on.

Each of these situations presents a serious moral and legal question that has to be resolved within the context of justice as we understand that notion. Can a man escape criminal prosecution if his crime was to expose criminal government conduct? Yes, there are statutes that say he can. The question becomes whether in fact that is what he did. Was he qualified to make the decision that the materials he disclosed were not so damaging to our defense that, when weighed against the public’s right to know, he should be excused?

Congress has this essentially un-American view of inmates at Guantanamo Bay, i.e. they are guilty until someone proves them innocent. They are not entitled to a trial. Certainly, they must remain incarcerated until they die. That position seems to have determined much of Republican thinking – to the extent there is thinking at all.

This ignoring of due process never comes to any good. Either we are a successful democracy or we are another random autocracy that provides rights and freedom based on status and wealth. If we are not the democracy we claim to be we ignore due process and become a scourge for our hypocrisy.

Snowden does not deserve to be considered a hero until he submits his claims to due process of law. Bowe Bergdahl does not deserve to considered a deserter until and unless someone charges him and proves that he is.


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  1. Dick Fausett
    Posted June 29, 2014 at 3:20 pm | Permalink

    Agree with you that neither men are guilty until it is proven. personally I think that there are two issues with each, that need to be addressed. First, is disclosing the existence of NSA actions a crime and second, did his actions cause the disclosure of secret information, especially in Hong Kong and in Russia. In both cases he is innocent until proven guilty. Bergdahl is slightly different. If he deserted, he should be subject to military justice, but again is innocent until proven guilty. Second is a political issue: should we have released the gang of 5 in exchange for this one man, whether he did wrong or not. You criticize the Republicans, but remember one of the first to object was Diane Feinstein (D, CA). While giving Congress 30 days notice might not have been possible, I suggest that the Administration can rightly be criticized for not telling at least Feinstein, until it was a done deal.
    As to Guantanamo, I would take the position that we are in a state of war with the Taliban and prisoners of war do not have a right to trial in a U. S. civilian courtroom with U.S. citizen rights.

    • JMcCray
      Posted June 29, 2014 at 4:24 pm | Permalink

      Senator Feinstein is just barely a Democrat. I’ve known her for very nearly fifty years and knew her late first husband, who was a jewel ( “Mensch” in Yiddish, I believe). But the fact that a Democrat criticized the trade doesn’t change the hue of the argument from silly to something else. Guantanomo, more than any of the outrages committed in our name, has motivated the hate of our name and place. We, instead of the mauling colonists that made civil society near impossible in that part of the world, are the object of every Arab’s wrath. There is no rational basis for maintaining a prison of kidnapped alleged criminals on the theory they are enemy combatants when the war is over. Remember most of these guys are still there because the Government cannot make a criminal case against them. That, Richard, is one definition of tyranny. As for Bergdahl, I am disappointed that you don’t see the point of my little blog. You insist that he is a deserter, but you are not in possession of any evidence to support that assertion – none. But even that is not the point. The guy is an American soldier that was captured while on duty on our behalf in a foreign land. We owe it to him and every poor son-of-s=-bitch that we ever ask in the future to go to some hell hole and shoot someone and be shot at to bring him home alive and whole.

      • Keith Roberts
        Posted June 30, 2014 at 7:39 am | Permalink

        Joe, while I agree wholeheartedly about Guantanamo, I think you misunderstood Richard’s comment about Bergdahl. He never calls him a deserter, simply says, correctly, that the accusations against Bergdahl are for a military court to decide. He raises the question of whether the 5 Talibans should have been exchanged for Bergdahl. I tend to think it was a good decision, that the 5 are not so dangerous now, and that it’s part of a bargaining game that is out of the public eye.

      • JMcCray
        Posted June 30, 2014 at 10:16 am | Permalink

        Keith: I didn’t say it correctly. Yes, Bergdahl’s legal fate is a matter of military justice. I thought Richard was starting with the conclusion the guy is a deserter. Yes, as well, Dianne’s weighing in on criticizing the President for the Bergdahl exchange was his failure to notify Congress. The objection is, in my view, vacuous. What happens if one notifies Congress? The mindless and treasonous are enabled to destroy the exchange and further destroy diplomatic means to get stuff done. Finally, my ineptly expressed point about the release of the five is that WE HAVE NO RIGHT TO CONTINUE TO HOLD THEM. We got Bergdahl home by giving up something we were legally and morally required to give up in any case.

  2. Keith Roberts
    Posted June 30, 2014 at 7:41 am | Permalink

    And as to notifying Congress, Feinstein is technically correct but substantively wrong. These people are sieves.