The furor surrounding Edward Snowden’s release of classified documents, and his Carmen Sandiego flight around the globe, has cooled a bit. Snowden’s bid for asylum has not received the international support he hoped it would.[1] The United States revoked the fugitive leaker’s passport.[2] Federal criminal charges have been filed.[3]
Wikileaks published a written complaint by Snowden about the U.S. government’s moves to limit his freedom of movement and thwart his attempt to avoid prosecution.[4] Snowden says his right to seek asylum, “laid out and voted for by the U.S. in Article 14 of the Universal Declaration of Human Rights, is now being rejected by the current government of my country.”[5]
These complaints deserve to be addressed.
English: Former U.S. First Lady Eleanor Roosevelt with the English version of the United Nations Universal Declaration of Human Rights Italiano: Mrs. Eleanor Roosevelt, moglie del presidente degli Stati Uniti, mostra la Dichiarazione in formato poster (1949) (Photo credit: Wikipedia)
International Law
The U.S. Supreme Court has upheld the power of the Executive Branch to revoke a passport for national security purposes.[6] The cancelling of his passport is well within the power of the federal government, even if it results in limiting Edward Snowden’s freedom of movement.
The Universal Declaration of Human Rights (UDHR) is not a treaty, and therefore is nonbinding (though some of its provisions have since been codified in treaties).[7] The UDHR has an asylum rule in Art. 14:
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.[8]
Espionage usually falls in the category of political crimes.[9] Although Snowden has not been charged with “espionage” per se, two of the three counts in the criminal complaint could reasonably be interpreted as espionage crimes, and would thus be “political crimes.”
Additional human rights covenants have been created, including the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992.[10] The ICCPR does not have a specific provision for asylum-seekers, but it does have provisions against arbitrary detention.[11] Snowden, if returned to the U.S. to face prosecution, would be entitled to all constitutional and legal rights afforded to every other criminal defendant, including the right to know the charges against him, the right to effective counsel, and the right to cross-examine witnesses. His detention and prosecution in the United States would not violate the ICCPR.
Though the countries to which he flees may refuse to extradite him, or may grant him asylum under UDHR Article 14, Snowden has no recourse under binding international law to avoid prosecution in the United States. He may have a legitimate complaint that the United States is attempting to prevent his right to seek and to enjoy asylum under the UDHR, but he would not have a legal complaint.
Whistleblower?
Despite the fact that the secret documents revealed by Snowden contained no evidence of violations of the U.S. Constitution or federal law, Snowden and Wikileaks supporters continue to insist that Snowden is a whistleblower. The vehement declarations of Snowden’s whistleblower status are usually conclusory, without any analysis of what it means to be a whistleblower, or of whether Snowden actually fits that definition.
The “whistleblower” mantra was repeated by The Guardian,in an extraordinarily poorly-reasoned and self-serving editorial in favor of the leaks published by the same newspaper.[12] Spencer Ackerman’s retort to claims by American lawmakers that Snowden “provided intelligence to America’s enemies” with the assertion that there is no evidence to support the claim.[13] Yes, Snowden provided classified intelligence to The Guardian, which published the intelligence to everybody. And yes, America’s enemies is a subset of the persons to whom Snowden provided intelligence, but Ackerman seems to think the use of his newspaper somehow breaks the causal chain.
It’s true that information published in the press can be read by anyone, including people who mean America harm. But to conflate that with actively handing information to foreign adversaries is to foreclose on the crucial distinction between a whistleblower and a spy, and makes journalists the handmaidens of enemies of the state.[14]
Yes. And?
No explanation is proffered for why handing over intelligence to the press, through which it will reach America’s enemies, should be a distinction between “whistleblower and spy.” The consequence that it would make “journalists the handmaidens of enemies of the state” is asserted without any attempt to justify the The Guardian’s publishing national security information. It is simply thrown out there as a get-out-of-criticism-free card.
“Whistleblower” has an actual meaning. It is not merely a convenient term for someone who reveals secrets in a way one political group or another likes. A closer look at what it means to be a whistleblower is in order.
Congress provided protections for whistleblowers by passing the Whistleblower Protection Act of 1989 (WPA).[15] The purpose of the law is to “[protect] employees who disclose Government illegality, waste, and corruption.”[16] Additionally, Executive Order 12674 directs government agents to “disclose waste, fraud, abuse, and corruption to appropriate authorities.”[17] Intelligence operatives and employees, however, are treated differently than other government agents. The information they possess is inherently dangerous.[18] Revealing classified information can cost the lives of field agents, their foreign associates, and innocent civilians if terrorist attacks are not prevented. For this reason, the WPA excludes the intelligence community from its legal protections for whistleblowers.[19]
Intelligence workers have a different set of legal protections, codified in the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA).[20] The aim of whistleblower protection for the intelligence community is to provide a whistleblower a path to Congress, where allegations if “urgent concern” may be scrutinized outside the secrecy of the Executive branch.[21] The intelligence worker is to report the complaint to the Inspector General (IG) of the Department of Defense.[22] The IG system, while not perfect, has provided significant checks on Executive Branch power.[23]
The legal protections for whistleblowers are in place to serve the dual and competing interests of Executive secrecy and public disclosure. In his law review article on whistleblowing, Andrew Galle noted that the fate of Bradley Manning, who disclosed secret documents to Wikileaks, would have been different had he followed the procedure for whistleblowers.
Had Manning made his disclosures pursuant to the ICWPA procedures, the information he transferred would have been kept secure and gone directly into the hands of congressional intelligence committees, the legislative policymakers best suited to make meaningful changes in the [intelligence community] when the Executive refuses to take action. Had he done so, his agency would have been prohibited from retaliating against him because he would have done nothing wrong. Even going to the IG would have been a safer alternative, as his disclosure would have been protected by statutory guarantees against agency retaliation. Admittedly, he could have lost his security clearance in retaliation, but at least he could appeal that revocation within his agency. By taking matters into his own hands and leaking information directly to the news media, Manning forfeited all protections available to him and now faces criminal charges.[24]
None of these whistleblower protections appear to apply to Snowden. His disclosures were not of waste, fraud, abuse, or corruption, as directed by Executive Order 12674. As noted before in this blog, the NSA activities revealed by Snowden were unlikely to have violated the Constitution or broken any federal laws.[25] He did not alert the appropriate authorities, such as the IG for the Department of Defense. Instead, he bypassed all legal channels to Congress and went directly to the press.[26]
As we consider whether to give Snowden “whistleblower” status, it is important to consider the costs incurred by his type of disclosure. Even taking into account the common criticism of overclassification by the Executive Branch, it makes no sense for a low-level employee, whose motivations may or may not be noble, to substitute his judgment for that of duly elected representatives of two branches of government.[27] Senators Al Franken and Dianne Feinstein, no liberal slouches, they, defended the NSA program as having saved lives.[28]
Snowden is not just playing a spy game. He is playing a game with peoples’ lives at stake, and against the judgment of the people elected to address these issues.
The Criminal Complaint
Edward Snowden is not charged with a vague offense like “spying” or “treason.” The criminal complaint issued by federal government on 14 June charged Snowden with three specific offenses:
18 U.S.C. 641 Theft of Government Property
18 U.S.C. 793(d) Unauthorized Communication of National Defense Information
18 U.S.C. 798(a)(3) Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person.[29]
His guilt or innocence under these statutes will depend on the elements of each offense, and whether the government can prove beyond a reasonable doubt that Snowden’s actions satisfy each element. At this point, we do not have all the evidence that will eventually be aired in court. The best we can do is look at the criminal charges and see if the facts as we know them fit the crimes.
Theft of Government Property
18 U.S.C. 641 reads:
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—
Shall be fined under this title or imprisoned not more than ten years, or both; . . .[30]
In analyzing Snowden’s guilt under the statute, we must determine whether the secret documents count as “property” of the U.S. government which were “stolen” by Snowden’s leaks to the media.
In United States v. DiGilio, the defendants managed to get copies of secret FBI files.[31] An FBI clerk made unauthorized copies of documents and delivered them to the subject of a criminal investigation.[32] The defendants argued that § 641 should not apply because the government was not deprived of their use by the actions of the defendants. [33]They also argued that the copies were not, in themselves, “records” within the meaning of the statute.[34] The Third Circuit shot these arguments down: “A duplicate copy is a record for purposes of the statute, and duplicate copies belonging to the government were stolen.”[35] The fact that the government retained the originals was of no import.
Copies of secret documents also constitute a “thing of value” under the statute, according to the Sixth Circuit in United States v. Jeter.[36]
Though Snowden distributed electronic copies of secret documents, rather than photocopies or originals, his actions are analogous to the facts of DiGilio. The fact that the government retained the originals, and the fact that Snowden had limited authorization to use classified information, does not change the basic illegality of the disclosure. The documents belonged to the government, and they were intentionally converted to Snowden’s use in violation of § 641.
Unauthorized Communication of National Defense Information
18 U.S.C. 793(d) states:
(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;
Shall be fined under this title or imprisoned not more than ten years, or both.[37]
In United States v. Abu-Jihad, the Second Circuit set out the elements of the statute:
To convict Abu-Jihaad of the § 793(d) crime with which he was charged, the government was required to prove beyond a reasonable doubt that he (1) lawfully had possession of, access to, control over, or was entrusted with information relating to the national defense; (2) had reason to believe that such information could be used to the injury of the United States or to the advantage of any foreign nation; (3) willfully communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted such information; and (4) did so to a person not entitled to receive it. [38]
Snowden’s actions easily fit these elements.
(1) Snowden was entrusted with classified national defense information as an employee of a contractor for NSA.[39]
(2) As The Guardian editorial admitted, “information published in the press can be read by anyone, including people who mean America harm.”[40] Snowden could not have leaked the classified material without a reasonable belief that it would be “used to the injury of the United States or to the advantage of any foreign nation.”
(3) Snowden has admitted to delivering the classified national defense information to The Guardian.[41]
(4) Glenn Greenwald was not entitled to receive the classified information.
Edward Snowden appears to be in violation of 18 U.S.C. 793(d), which carries a prison sentence of up to ten years. Since he has foregone any of the procedures which would have provided him legal protection as a whistleblower, it is the duty of the Executive Branch to enforce the law, regardless of the rantings by Snowden’s supporters.
Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person
18 U.S.C. § 798 says:
(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;
. . .
Shall be fined under this title or imprisoned not more than ten years, or both.
Some of the elements of this statute are the same as § 793(d): willful communication to an unauthorized recipient. Section 798, however, focuses on the classified nature of the material. All of Snowden’s leaks, from telephone metadata to PRISM, were related to “intelligence activities of the United States.” As an experienced intelligence worker, Snowden could not have been unaware of the classified nature of the material he was leaking.
Conclusion
Edward Snowden is no whistleblower. Whistleblowers are heroes. They put their careers on the line to expose waste, fraud, or abuse by the government. Snowden revealed none of those things, since his leaked secrets confirm that the government was not violating the Constitution or federal law. One does not attain the lofty title of whistleblower merely by revealing information that the leaker finds distasteful, or disagrees with politically. To extend the term whistleblower to cover political malcontents is to cheapen its meaning, and diminish the heroism of real whistleblowers.
There are legal protections in place for real whistleblowers. Maybe the legal protections are inadequate, but the point is moot in Snowden’s case. He willfully wrecked his own career with no intention of availing himself of any legal protections because he felt he did nothing wrong.[42] The Guardian’s interview with Snowden should dispel any claims to whistleblower heroics:
“I don’t see myself as a hero,” he said, “because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity.”[43]
No concern for the Fourth Amendment. No balancing of security against privacy. No thought given to the lives that may be lost due to the damage he has done to American security interests. Edward Snowden’s actions were purely the imposition of one man’s worldview upon everyone else, bypassing any safeguards that might have prevented the damage. It was, by his own terms, self-interested.
Whether Snowden is guilty of a crime is not a matter that can be adequately explored in a blog. Edward Snowden should be brought to account for his actions, and in the process he should be afforded competent and effective counsel for his defense. If there are any arguments or facts which would mitigate his guilt, they should be presented within the context of a fair trial. I would provide Edward Snowden greater protection under law than he afforded the rest of us. Should he be acquitted, I would happily accept that outcome.
As it stands now, though, Snowden is running from accountability. The facts as we know them support the charges against him. He should not be held above the law just because he received a brief flash of popular support. If he has the courage of his convictions, let him stand trial.
[1] Alonso Soto, Todd Benson, Vicki Allen, “Edward Snowden Asylum Request In Brazil Rejected,”Reuters, July 2, 2013, http://www.huffingtonpost.com/2013/07/02/edward-snowden-asylum-brazil_n_3532934.html; “Edward Snowden India Asylum Request Rejected,” AP, July 2, 2013,http://www.huffingtonpost.com/2013/07/02/edward-snowden-india-aslym_n_3532636.html; “France Rejects Snowden’s Asylum Request,” The Local, July 4, 2013,http://www.thelocal.fr/20130704/french-minister-objects-to-asylum-for-snowden; “Stateless in Moscow: Germany Rejects Asylum for Snowden,” Spiegel Online, July 3, 2013,http://www.spiegel.de/international/germany/germany-has-rejected-edward-snowden-asylum-application-a-909128.html
[2] Matthew V. Lee, “NSA Leaker Edward Snowden’s Passport Revoked: Source,” The Washington Times, June 23, 2013, http://www.washingtontimes.com/news/2013/jun/23/nsa-leaker-edward-snowdens-passport-revoked-source/
[4] “Statement From Edward Snowden in Moscow,” Wikileaks, July 1, 2013, http://wikileaks.org/Statement-from-Edward-Snowden-in.html?snow
[5] Id.
[6] Haig v. Agee, 453 U.S. 280 (1981), http://scholar.google.com/scholar_case?q=Haig+v.+Agee&hl=en&as_sdt=2,37&case=16655038412990051708&scilh=0
[7] Barry E. Carter, Allen S. Weiner, International Law 749 (“The Universal Declaration is not a treaty and, at least originally, was considered nonbinding. . . . many of the rights set forth in the Declaration have now been codified in treaties.”).
[8] UDHR Art. 14, http://www.un.org/en/documents/udhr/
[9] “Sweden: Extradition of U.S. Spy ‘Unlikely,’” The Local, April 27, 2013, http://www.thelocal.se/47580/20130427/
[10] Jimmy Carter, “U.S. Finally Ratifies Human Rights Covenant,” June 29, 1992, The Carter Center, http://www.cartercenter.org/news/documents/doc1369.html
[11] ICCP, Part III, Art. 9.
[12] Spencer Ackerman, “Edward Snowden is a whistleblower, not a spy – but do our leaders care?,” The Guardian, July 5, 2013, http://www.guardian.co.uk/world/2013/jul/05/edward-snowden-nsa-whistleblower-spy
[13] Id.
[14] Id.
[16] 101 S. 20 § 2(a)(2) (1989).
[17] Executive Order 12674(k) (1989), http://www.doi.gov/ethics/docs/eo12674.html
[18] Andrew Galle, “Whistle-blowing in the Intelligence Community: Why a New Board Will be a Step in the Right Direction,” 8 J. L. Econ & Policy 83, 89 (2011).
[19] Id. at 91; 5 U.S.C. § 2302(a)(2)(C)(ii) (2012), http://www.gpo.gov/fdsys/pkg/USCODE-2012-title5/pdf/USCODE-2012-title5-partIII-subpartA-chap23-sec2302.pdf
[20] Id.; 5 U.S.C. § 8H (2012), http://www.gpo.gov/fdsys/pkg/USCODE-2012-title5/pdf/USCODE-2012-title5-app-inspector-sec8H.pdf
[21] 5 U.S.C. § 8H(a)(1)(A).
[22] Id.
[23] Galle at 92 (“It is interesting to note that the President may remove an IG at any time; although Congress must be informed before the dismissal, the IGA does not provide a mechanism for Congress to prevent the removal.”); Galle at 96-97 (“For example, Inspector General Glenn Fine of the Justice Department produced reports damning the Bush Administration’s conduct. . . . The continued employment of such IGs, even after severely criticizing the Administration, suggests a “soft power” check on the President’s removal power.”).
[24] Galle at 105 (internal citations omitted).
[26] “NSA collecting phone records of millions of Verizon customers daily,” Glenn Greenwald, June 5, 2013, The Guardian, http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-court-order
[27] Heidi Kitrosser, “Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information, 6 J. Nat. Security L. & Policy 409, 427 (2013) (“Given this background, it is not surprising that experts across the political spectrum long have acknowledged rampant overclassification.”).
[28] “Franken ‘Very Well Aware Of’ NSA Tracking Phone Records,” WCCA CBS Minnesota, June 10, 2013,http://minnesota.cbslocal.com/2013/06/10/franken-very-well-aware-of-nsa-tracking-phone-records/; “Dianne Feinstein: NSA Surveillance Program Helped Disrupt Terrorist Plots,” AP/Huffington Post, June 6, 2013,http://www.huffingtonpost.com/2013/06/09/dianne-feinstein-nsa_n_3412026.html
[30] 18 U.S.C. § 641 (2012), http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap31-sec641.pdf
[31] United States v. DiGilio, 538 F. 2d 972, 976 (3rd Cir. 1976),http://scholar.google.com/scholar_case?q=%2218+USC+%C2%A7+641%22&hl=en&as_sdt=2,37&case=17238143229714793788&scilh=0
[32] Id. at 976.
[33] Id. at 977.
[34] Id.
[35] Id.
[36] U.S. v. Jeter, 775 F.2d 670 (6th Cir. 1985), http://scholar.google.com/scholar_case?q=%2218+USC+%C2%A7+641%22&hl=en&as_sdt=2,37&case=13850929348021483073&scilh=0
[37] 18 U.S.C. § 793(d) (2012), http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap37-sec793.pdf
[38] U.S. v. Abu-Jihaad, 630 F.3d 102 (2nd Cir. 2010), http://scholar.google.com/scholar_case?q=%2218+USC+%C2%A7+793(d)%22&hl=en&as_sdt=2,37&as_ylo=2009&case=1952892383478751676&scilh=0
[39] “Profile: Edward Snowden.” BBC News, 1 July, 2013, http://www.bbc.co.uk/news/world-us-canada-22837100
[40] Spencer Ackerman, “Edward Snowden is a whistleblower, not a spy – but do our leaders care?,” The Guardian, July 5, 2013, http://www.guardian.co.uk/world/2013/jul/05/edward-snowden-nsa-whistleblower-spy
[41] Glenn Greenwald, Ewen MacAskill, Laura Poitras, “Edward Snowden: The Whistleblower Behind the NSA Surveillance Revelations,” The Guardian, June 9, 2013,http://www.guardian.co.uk/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance
[42] Id.
[43] Id.
bryantulsa 
Nice piece. I don’t think you explored his “Nuremberg” defense, though you touched on International Law. The interesting thing about the idea that you have a “higher” duty then your national law, (provided you have reason to suspect your actions infringe on the basic life or humanity of your people) was actually used by the U.S. to prosecute Nazi war criminals. This isn’t an imposed standard, the U.S. helped create it, and he has a good argument there as well.