JURIST Guest Columnist Tung Yin of the Lewis & Clark Law School says that the key issue in assessing the espionage charge against Edward Snowden is whether his disclosure of the gathering of call data harmed the US or helped a foreign nation…

Several weeks ago, The Guardian‘s Glenn Greenwald broke a story that the National Security Agency (NSA) has been gathering Verizon telephone records, including those of US customers, on a daily basis pursuant to a secret order by the Foreign Intelligence Surveillance Court (FISC). Along with Greenwald’s story, The Guardian published the “top secret” FISC order, which had been provided by an unnamed source. This was followed by additional revelations of secret NSA surveillance programs covering web searches, email traffic, and other Internet traffic. Shortly thereafter, the source of the classified information revealed himself to be Edward Snowden, an employee of Booz Allen Hamilton, a consulting company contracted to provide IT services for the NSA.

On June 14, FBI Special Agent John Kralik filed a criminal complaint against Snowden, alleging violations of 18 U.S.C. ¨ 641 (theft of government property), 18 U.S.C. ¨ 793(d) (unauthorized communication of national defense information), and 18 U.S.C. ¨ 798(a)(3) (willful communication of classified communications intelligence information to an unauthorized person). The latter two charges are part of Title 18, Chapter 37, which is labeled “Espionage and Censorship.”

Since Snowden has publicly admitted to being the source of the classified information obtained by The Guardian, the essential facts are not in dispute. Snowden has been called a “hero” by some and a “traitor” by others. Some Snowden supporters have argued that the US Department of Justice (DOJ) must consider the American public to be the enemy, as Snowden’s goal was to expose the NSA surveillance program so that Americans would know that their own government was spying on them. While there is no doubt some rhetorical force to this argument, it finds little support in the actual statutory language of section 793 and none in that of section 798.

Section 793(d) states in relevant part:

Whoever, lawfully having . . . access to [or] control over . . . any document 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 . . . the same to any person not entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. . . .

Section 798(a)(3) states in relevant part:

Whoever knowingly and willfully communicates . . . to an unauthorized person any classified information . . . concerning the communication intelligence activities of the US or any foreign government . . . shall be fined under this title or imprisoned . . .

To begin with, it seems undisputed that Glenn Greenwald is “an unauthorized person” “not entitled to receive” classified information, and that the existence of the Verizon FISA order, PRISM, and other surveillance programs concerning “communication intelligence activities.” That term is statutorily defined as “all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients,” which unquestionably covers the NSA’s activities.

Thus, Snowden’s defense to section 793 and 798 charges must focus on the mens rea elements. But section 798(a)(3) is a particularly hostile battlefield for him. The government need not prove that the defendant disclosed the classified information to an “enemy;” all it needs to do is to prove that the defendant knew and intended to disclose the classified information to some unauthorized person. On that, Snowden has already admitted as much in written statements to The Guardian: “My sole motive is to inform the public as to that which is done in their name and that which is done against them.”

Under section 793(d), the government must prove a slightly more complex mental state: that the defendant disclosed the “national defense” information with “reason to believe [it] could be used to the injury of the United States or to the advantage of any foreign nation.” Based on his public statements, one could anticipate that Snowden will argue that he merely intended to inform the American public about allegedly unlawful government activity. The problem for Snowden is that even if his motives were pure, section 793(d) looks at the effects of the information disclosure, not the leaker’s motivation. For example, in United States v. Morison, a district court agreed with the government interpretation of section 793(d) that the statute is violated when a defendant “willfully transmits photographs relating to the national defense to someone who is known by the defendant not to be entitled to receive it … no matter how laudable his motives.”

So the key issue is whether disclosure of the gathering of Verizon call data and PRISM harmed the US or helped any foreign nation. According to unnamed US intelligence officials, it has: “members of virtually every terrorist group, including core al-Qaeda, are attempting to change how they communicated, based on what they are reading in the media, to hide from US surveillance.” If true, this is hardly an unforeseeable outcome, as there are reports that Osama bin Laden stopped using his satellite phone after a newspaper printed a leaked tip that the NSA was tracking that phone.

No analysis of Snowden’s potential legal liability can ignore the cases of Daniel Ellsberg, who delivered the secret Pentagon Papers to the New York Times and the Washington Post at the height of the Vietnam War, and Private Bradley Manning, who gave WikiLeaks classified videos of military attacks, a quarter million diplomatic cables, and a half million Army reports concerning Iraq and Afghanistan. Given Ellsberg’s pivotal role in the chain of events that would culminate in the US Supreme Court’s landmark freedom of the press case, New York Times Co. v. United States (Pentagon Papers Case), and his stature as perhaps the preeminent American whistleblower, his public lauding of Snowden carries significant moral weight.

Yet, one must remember that Ellsberg surrendered himself to federal authorities (unlike Snowden, who, at present is reportedly hiding in Russia while seeking asylum in South America) and stood trial on espionage and theft of government property charges; he was not convicted because the district court dismissed the charges due to government misconduct. As for Manning, he too is being prosecuted in a court-martial presently on military charges, several of which are based on the by-now-familiar sections 641 and 793; earlier, he pleaded guilty to 10 of the 22 charges against him (mostly related to misuse of classified government information).

To be sure, the government may be tempted to overstate the harm from disclosure of classified information (not to mention, to over-classify in the first place). In the Pentagon Papers case, for example, the government argued that it would suffer irreparable harm from the continued publication of the Vietnam War study, because “serious injuries are being inflicted on our foreign relations, to the benefit of other nations opposed to our foreign relations, to the benefit of other nations opposed to our form of government.” Yet, years later, upon seeing the entire document for the first time, President Nixon’s then-Solicitor General said there was no “trace of a threat to the national security” from what had been published. It may also be the case with Snowden’s disclosures. But if nothing else, Snowden has given away information about the intelligence gathering capabilities of the government. Indeed, Snowden’s subsequent disclosure to the South China Morning Post that “hundreds of computers in Hong Kong and mainland China [have] been targeted by the NSA over a four-year period,” even providing specific “dates, domain names, Internet protocol numbers and other operational details,” seems to fall squarely within the scope of the Espionage Act.

It is, of course, far from certain that Snowden’s story will end in convictions and a lengthy prison sentence. He might never stand trial if he disappears, if he is granted asylum by another country, or if he escapes to a non-extradition nation. He might prevail at trial, particularly if he were to draw a jury sympathetic to his asserted motivation of exposing government wrongdoing. But based on what he has already admitted in his interviews with The Guardian, Snowden’s conduct does appear to describe violations of 18 U.S.C. ¨¨ 793 and 798.

Tung Yin is a professor of law at Lewis & Clark Law School in Portland, OR, specializing in national security law and terrorism and the law. He has examined such matters as the jurisdiction of the federal courts to entertain habeas petitions by Guantanamo Bay detainees, the theory of unilateral executive branch powers and the potential constitutional rights available to alien detainees outside the country.

Suggested citation: Tung Yin, Is Edward Snowden Guilty of US Espionage Charges?, JURIST – Forum, Jul. 15, 2013, http://jurist.org/forum/2013/07/tung-yini-edward-snowden.php.