Also, is intent a consideration? I have perused the Treason and Espionage laws and can't find a clear path to legally call Snowdens whistleblowing behavior either treason or espionage. In order to be either it seems that Snowden would have to have satisfied his sharing the NSA classified documents "to the injury of the United States or to the advantage of any foreign nation" and/or the national defense.
Yes, the United States is certainly embarrassed. And, yes, I would suspect that many countries are both disheartened and glad to know the truth about the world-wide scope of NSA data mining. Is their knowledge of NSA secret spying and data gathering on their citizens injurious to the USA? And, if deemed so, injurious in what manners?
It is clear that Snowden broke some contractual agreements with regard to living up to his security clearance, but I am having a hard time finding the legalese to justify charging Snowden with either treason or espionage.
In a press release, Edward Snowden is charged with the following by DOJ, although it would have been helpful if DOJ had included which Chapter of law these each fall under:
• On June 14, 2013, the fugitive, Edward J. Snowden, was charged by complaint in the ED VA with violations of:
o 18 U.S.C. § 793(d) (Unauthorized Disclosure of National Defense Information);
o 18 U.S.C. § 798(a)(3) (Unauthorized Disclosure of Classified Communication
Intelligence); and
o 18 U.S.C. § 641 (Theft of Government Property).
Let's look at these laws.
Here are few documents I have scoured:
From the government:
2057 - Synopses of Key National Defense and National Security Provisions
In the government article, it refers to Espionage -- 18 U.S.C.§ 793 reads:
Section 793 applies to activities such as gathering, transmitting to an unauthorized person, or losing, information pertaining to the national defense, and to conspiracies to commit such offenses.
You can read 18 USC 793 Legislative History
here.
Law Cornell.edu provides a copy of each section of 18 USC Chapter 37 - ESPIONAGE AND CENSORSHIP.
It appears that Section 793 (d) is more about the physical aspects of security, like military bases, etc. I will highlight the wording I think exonerates Snowden:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
I can't find DOJ's legal documents regarding their charges against Snowden.
I think DOJ has to justify 793 with proof that Snowden intended to harm the US as well as list out how Snowden's disclosures harmed the defense of the US.
How does letting the people of the United States and the world know their personal computer information is being indescriminately gathered and stored forever by NSA damaging to the defense of the United States?
Did Snowden intend and/or have reason to injure the United States?
What would constitute the INJURY? The burdens of proof that Snowden's disclosure injured the United States have to be stated/demonstrated/ in order to charge him with breaking the law, don't they? You can't just say you broke a specific law, right?
What outcome of Snowden's disclosures satisfy "reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation"
It appears that the laws, as presently written are ill-equipped to convict Edward Snowden or even Jullian Assange who certainly released a ton more information than Edward Snowden has. Bradley Manning's case differs because he was an insider, although the questions of intent, damage to defense, national security, and aid to foreign countries still have to be proven one would hope.
Here in lies the government secrecy vs the people's right to know conundrum, which is very well discussed in this pre-Snowden article which agrees with the questions asked above:
Balancing and the Unauthorized Disclosure of National Security Information: A Response to Mark Fenster's Disclosure Effects: WikiLeaks and Transparency
and concludes:
Nevertheless, because Professor Fenster is correct that striking the balance between the competing societal interests is difficult on a case-by-case basis, this Response urges Congress to reform the Espionage Act and related statutes to reflect a careful consideration of these interests with respect to disclosures by both government insiders and outsiders.
Good luck with that.
Now let's look at the next law DOJ says Snowden has broken,18 USC § 798 - Disclosure of classified information
From the Cornell website
18 USC § 798 - Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(3) concerning the communication intelligence activities of the United States or any foreign government; or
You can read 18 USC 798 Legislative History
here.
I think the same questions asked above apply here with one addition:
Can exposing the gathering of OUR INFORMATION or the peoples of Germany, France and/or Australia be considered a "communication intelligence activity"?
Some might argue that this so-called "communication intellligence activity" is SPYING ON innocent people here and around the world, and worthy of being exposed.
And the last law, 18 USC § 641 - Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
You can read 18 USC 641 Legislative History
here.
Snowden definitely purloined, no question. However,
How did Snowden "convert to his use or the use of another"?
In this case, I don't think the DOJ has a case under existing law.
I agree with the analytical summation above, which I will rephrase:
Congress needs to either reform 18 USC § 641 - Public money, property or records and related statutes to reflect a careful consideration of digital data interests with respect to disclosures by anyone, to include government insiders and outsiders.
Or
Congress needs to write a Digital Data Stealing version of 18 USC § 641 - Public money, property or records.
That said, why didn't DOJ charge Snowden with breaking 18 USC § 794 - Gathering or delivering defense information to aid foreign government considering we are in a seemingly eternal WAR against terrorism?
Why not charge Snowden under
18 USC § 1030 - Fraud and related activity in connection with computers
Putting aside a discussion of Snowden (please don't hijack this legal discussion with "I Like/I Hate Snowden/Greenwald meta", there are enough diaries out there to chime in with) what laws do you believe DOJ is justified in charging Snowden with?
Did Snowden break any laws, as they are written today?
If so, is it justified to prosecute a citizen who exposes an illegal government program and does not injure the United States, its defenses, or anyone in particular or aid foreign governments?
DISCLAIMER: Please be kind, I am not a legal professional, just interested in the opinions of those who are.