July 1, 2013
Edward Snowden is doing his best to avoid falling into the hands of U.S. law enforcement, and he’s not pretending he did nothing illegal. He has admitted disclosing classified secrets about surveillance programs conducted by the federal government, and doing that is clearly against the law.
Last week, federal prosecutors filed a criminal complaint charging Snowden with various offenses — theft, “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person.”
People with access to national security secrets know they have a legal obligation not to reveal those secrets — and that they’re subject to punishment if they do. Many classified documents contain information that if revealed would profit our enemies and place us at risk.
National Security Agency Director Gen. Keith Alexander said last week that Snowden’s disclosures did “irreversible and significant damage,” and the FBI agrees. But the government has yet to explain what the damage was — given that al-Qaida and other terrorist groups must already have been aware of the risks of being monitored in their cellphone and Internet communications.
There was some value in the leaks, since they provided the American people with substantive information about how their government is operating. The programs Snowden uncovered are now going through a valuable public debate.
As far as we know, he was not engaged in espionage in the sense that he turned over the documents to some hostile foreign government. He turned them over to journalists. A lot of valuable journalism relies on government employees leaking information that warrants public scrutiny.
If the government wants to send him away for decades, the law makes that outcome perfectly plausible. The Espionage Act makes it a crime to disclose classified material of this sort that is “prejudicial to the safety or interest of the United States,” a description broad enough to encompass even leaks that pose little if any genuine risk to security. Each of the most serious counts carry penalties of up to 10 years in prison.
But George Washington University law professor Jonathan Turley makes the argument that the Justice Department overplayed its hand in this case by taking a severe approach to something — leaking of classified information — that often happens and rarely provokes legal action.
A country asked to extradite Snowden may refuse if the charges appear to be politically motivated. In its selective prosecution, the administration “could not have worked harder to make this case look political,” Turley says.
A prosecution will be justified here — Snowden knowingly broke the law. Trying to lock him up for decades may not. If the government is convinced that the leaks had the serious potential to put lives at risk, make that case. If Snowden’s worst crime is embarrassing the administration, it would make sense to seek charges that carry enough punishment to induce great caution in those with access to such secrets, but not so much as to terrorize those who would expose serious abuses of power.
This debate, of course, depends on Snowden being nabbed and returned to the U.S. for trial. He may have another fate in store, a life of hiding in Cuba or Ecuador or in the land of some other U.S. antagonist known for its great traditions of government transparency and protection of civil liberties. We wouldn’t be the first to point out that Snowden may be remembered not as one of history’s great whistle-blowers, but as one of its great ironists.