About Frank Snepp

FRANK SNEPP

Peabody-Award winning investigative journalist and broadcaster; best-selling author; former interrogator, counter-intelligence operative and chief strategy analyst for the CIA in Vietnam; ex-CIA whistleblower; named defendant in a landmark U.S. Supreme Court ruling on free speech and national security; expert commentator on the Vietnam war, national security, and the First Amendment.

Continue reading

Makers of Snowden Documentary Face Legal Showdown over Leaks

CIA Author Points to U.S. Supreme Court Precedent

By Frank Snepp, January 8, 2015

A recent “exclusive” from The Hollywood Reporter reveals that Edward Snowden’s producer, who helped turn his secrets-bust into an Oscar-contending documentary, could be facing a financial bust for her trouble.

A newly filed lawsuit alleges that Laura Poitras and her production associates are guilty of helping the former NSA contractor breach his fiduciary obligations to the government.

If they lose, they could be obliged to forfeit all profits from “Citizenfour,” the documentary they filmed about Snowden and his decision to expose some of the NSA’s most sensitive classified information.

Kansas attorney Jean Lamfers filed the suit on behalf of a former government worker who argues that Snowden and his collaborators should not be allowed to profit from his leaks. The plaintiff, Horace Edwards, who insists he is acting for the public, seeks to have a “constructive trust” imposed on the profits that would cause them to be turned over to the government.

Under existing legal precedent, Edwards needn’t delve into the extent of Snowden’s security breach, or even prove its harmfulness, in order to prevail. He must only demonstrate that Snowden violated an obligation to clear his disclosures with the government and that the filmmakers helped him to overstep that duty.

Like all NSA and CIA employees Snowden signed non-disclosure agreements with an implicit fiduciary obligation to abide by them. The lawsuit holds that this obligation is transferable to Snowden’s accomplices.

As the ex-CIA agent who triggered the U.S. Supreme Court ruling now being used against Snowden and the filmmakers, I can testify that the case against them is viable, despite its grave implications for the media. It should serve as a wake-up call for all those in the press and film community who would help national security whistleblowers go public.

Check out this link for The Hollywood Reporter’s story about the case. Then check out my backgrounder for THR reporter, Eriq Gardner

http://www.hollywoodreporter.com/thr-esq/citizenfour-producers-sued-edward-snowden-759839

Eriq,

As the former CIA officer who triggered the Supreme Court decision now being directed at Snowden and his producers, I can assure you, sadly, that the case is rooted in established law.

When the U.S. Justice Department took me to court years ago for publishing an unauthorized CIA memoir, Decent Interval, about the fall of Vietnam, prosecutors considered going after my publisher, Random House and CBS’ “60 Minutes” for allegedly helping me breach my “fiduciary” (non-disclosure) obligations to the CIA. Ultimately they decided to spare my collaborators and to target me alone, on the theory that this was an easier legal shot.

It was a smart decision. With the focus on a single CIA officer, journalists and First Amendment purists were tricked into believing that the government’s action didn’t threaten the mainstream media, even though it did, as my lawyers, Alan Dershowitz, Mark Lynch and John Sims, fully realized.

The case reached the Supreme Court amid public hysteria over the Iran hostage crisis and the Soviet invasion of Afghanistan. In early 1980 the Court ruled against me summarily without allowing my lawyers or the government’s to file any briefs. Under the fiduciary-violation concept endorsed by the Court, I was shorn of all my “ill-gotten gains,” amounting to thousands of dollars, including future profits from my book and any related projects.

I was also gagged for life, forced to submit to the CIA for vetting and censorship all writings, even fiction, arguably related to my government service. The practical effects are still with me. Through an ironic fluke, because of my CIA experiences, I am featured in a documentary now contending with “Citizenfour” for an Oscar nomination – Rory Kennedy’s “The Last Days In Vietnam.” Had I written down the interviews I gave her, I would have been obliged to seek CIA approval for them.

What made my case unique — and very distinct from the charges being leveled against Snowden – is that the government never accused me of betraying any national security secrets.

I was prosecuted for simply publishing without official approval. In the crisis atmosphere of Jimmy Carter’s failing presidency, the Supreme Court readily accepted the government’s claim that my unauthorized book, even minus secrets, threatened “irreparable harm” to the national security by tempting others into flouting CIA security regulations.

If that sounds like a tenuous allegation, imagine how I felt: no one had ever been prosecuted on national security grounds for publishing non-secrets with no proof of harm to anyone.

By contrast, Snowden proudly and loudly betrayed highly classified secrets, and Poitras seems to have been an active accomplice. According to the court filing against her and her production associates, she helped create the opportunity and circumstances that enabled him to sneak his secrets out of NSA.

But the case against her doesn’t turn on sensitivity of those secrets, and the plaintiff, Horace Edwards, needn’t prove that their disclosure was even harmful to the nation’s security in order to win.

Under the precedent in U.S. v Snepp, the key questions are whether Snowden had an obligation to get official approval for his disclosures, whatever their sensitivity, and whether Poitras actively abetted him in breaching that “duty.”

If the answers to both questions are “yes,” then she and her associates could be as liable as he (allegedly) is for violating his fiduciary duty to the government.

The penalty fashioned in my case for such “ill faith” is forfeiture of all “ill-gotten gains,” no proof of damage required. It is tantamount to a no-fault lien on all profits from a collaborative breach of contract, with the proceeds to go the American people, i.e., the U.S. Treasury.

Bad enough that a whistleblower should face such a blunderbuss hit for what may have been an act of conscience. Even worse that his or her collaborators might have to endure the same fate.

Imagine what would have happened if The New York Times or The Washington Post had been threatened with loss of all profits from publishing the Pentagon Papers, which Dan Ellsberg arguably leaked through a “breach of fiduciary obligation.” Would either newspaper have been able to afford such a savaging of its bottom line?

That’s the danger to the media posed by the Supreme Court ruling against me, which was handed down nine years after the Pentagon Papers affair.

So far the government has chosen to use the precedent against leakers, not “leakees.” Over the years a number of rogue memoirists from the national security community have been punished with Snepp-type gags and financial sanctions, most recently talkative Seal Team 6 stalwarts.

But the case against Poitras raises the possibility of a broader application – an assault on the media itself by private plaintiffs using Snepp as a weapon.

In the mid-1990’s the cigarette manufacturer, Brown & Williamson, made a stab in this direction in an effort to silence a former employee. Jeffrey Wigand, who was attempting to blow the whistle on the dangers of nicotine. Invoking the Snepp precedent, the manufacturer threatened 60 Minutes with damages if it were to assist him in breaching a non-disclosure agreement and fiduciary relationship with the company by airing an interview with him. CBS caved in and delayed the full interview — and was ridiculed in a Hollywood blockbuster about the episode, titled “The Insider.”

Make no mistake: I am no fan of using Snepp to “snip” Poitras or anyone else. But it would be foolhardy to pretend the First Amendment doesn’t allow it. The Supreme Court has already resolved that issue.

I believe the only way this precedent might be rolled back is if its potential is made crystal clear to the public, and the media.

I wrote about its dangers in my second book Irreparable Harm, and as an investigative journalist of thirty years standing I worry about the vulnerability of the media every day.

Regards, Frank Snepp

 

 

 

Profiteering from Compromised Security: the Snowden Dividend

By Frank Snepp – Posted April 13, 2014

Luke Harding’s new book, “The Snowden Files,” shamelessly recycles many of the Top Secret NSA revelations first reported in his own newspaper, the Guardian, by Glenn Greenwald, his former colleague and Ed Snowden’s favorite press contact.

Harding rushed his twice-told tale into print last February in an apparent effort to gain a march on Greenwald who is preparing to publish his own Snowden tell-all a few weeks from now.

Besides stealing part of Greenwald’s own stolen thunder, the Harding tome serves to remind us there is no honor among thieves, especially when they’re vying to cash in on the biggest secrets heist in the history of U.S. intelligence.

Not that Greenwald suffered pre-emption easily. On February 10, he tried to nudge “Files” out of the headlines by planting a new Snowden bombshell on an “investigative” website he’d just launched with the Nation’s Jeremy Scahill and freelancer Laura Poitras.

That web exclusive – co-authored by Scahill – dealt with NSA’s alleged involvement in U.S. assassination plots. Never mind that the essence of the story had been surfaced months before by The Washington Post, in two reports based on Snowden documents in its possession. Greenwald apparently has no reservations about beating a dead horse if it will help him preserve his monopoly of the lucrative Snowden franchise.

He and Poitras staked a claim to this money machine last June when Snowden met with them and another Guardian reporter in Hong Kong and handed them most if not all of the secrets he’d lifted from his former employer, the NSA. Greenwald then worked with Harding and others at the newspaper to make the most of this bonanza. The Guardian owned a good chunk of the Snowden story until Greenwald quit in October, taking the leaker’s remaining stash with him for use on the new website, as if it were now his property.

Harding’s book may well be the Guardian’s way of sticking it to the guy who heisted the heist.

Continue reading

Owner of LA Staples Center Faces Trial in Toddler’s Death

Six months after AEG Live was found “not liable” in the Michael Jackson wrongful death lawsuit, another AEG subsidiary, which owns and operates the Staples arena in downtown Los Angeles, faces a legal showdown over a fatal accident there.

In a blistering reversal of earlier lower court rulings, a California appeals panel has ordered LA Arena Company to answer charges of negligence and unlawful business practices in the death of toddler Lucas Tang, who fell out skybox at Staples four years ago.

Alleged deficiencies in the front-row safety barriers, including their low height, figured in the family’s appeal.

“The company always knew that the barriers were constructed in a dangerous way,” Scott Wellman, an attorney for the Tang family said. “Their own witnesses testified that people would stand or sit on them. And still no one at Staples did anything to make them safer.”

In her first public interview, the victim’s mother, Hoai Mi Nguyen, expressed hope that the case might have the positive result of forcing changes in safety procedures at public venues everywhere. “The past has happened and there’s nothing we can do to bring Lucas back,” she said. “If this case is what it takes to prevent [similar accidents], I don’t want this to happen again to anyone else.”

Neither AEG’s spokesperson nor LA Arena’s attorneys responded to requests for comment.

Continue reading

Edward Snowden’s Weasel Ways

http://www.latimes.com/opinion/commentary/la-oe-snepp-snowden-nsa-20140131,0,2997528.story#tugs_story_display

latimes.com Op-Ed

“Edward Snowden’s Weasel Ways”

By Frank Snepp, January 31, 2014

Granting Edward Snowden clemency, as many have urged, would send a terrible message to other potential whistle-blowers. Yes, he may have sparked an important national privacy debate, but he did so through reprehensible actions that harmed national security.

If that’s a harsh verdict, I have earned the right to it. In terms of sheer media hype, I was the Snowden of my day, a disaffected ex-spy who, in the late 1970s and early ’80s, rocked the security community by publishing a memoir about intelligence failures I’d witnessed as a CIA officer during the last years of the Vietnam War. I did so only after the agency backhanded my repeated requests for an in-house review of our mistakes and refused to help me or anyone else rescue Vietnamese allies abandoned during the evacuation of Saigon.

Continue reading

No Integrity Award for Edward Snowden

“No Integrity Award, No Pardon for Edward Snowden”

By Frank Snepp (Posted January 2, 2014)

When I read recently that a group of CIA whistleblowers had traveled to Moscow to present Edward Snowden with their annual “integrity” award – his first public trophy for binge-leaking — I could only marvel at their audacity. The award is dedicated to the memory of the late, great CIA whistleblower Sam Adams and is supposedly reserved for insurgents of similar character. The current nominee doesn’t come close. The same reformist lobby is now invoking Sam’s name as part of an equally ill-considered campaign to win a Presidential pardon for Snowden, and The New York Times has recently seconded this appeal. If Sam were alive to pass judgment on it, he would give it a resolute thumbs down.

I know this with an insider’s certainty. Not only were Sam and I close colleagues in the CIA; we followed the same unwritten rulebook in exposing the wrongs and failings of our own spymasters, and suffered massive recriminations without turning tail. The last person either of us would embrace as a spiritual comrade is the mercurial young flight risk from the NSA.
Continue reading