On the Espionage Act Charges Against Edward Snowden Who is actually bringing 'injury to America': those who are secretly building a massive surveillance system or those who inform citizens that it's being done?

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The US government has charged Edward Snowden with three felonies, including two under the Espionage Act, the 1917 statute enacted to criminalize dissent against World War I. My priority at the moment is working on our next set of stories, so I just want to briefly note a few points about this.

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect ”noble” and “patriotic” whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker’s Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a “standstill”, while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that “President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom.” Read what Mayer and Goodale wrote and ask yourself: is the Obama administration’s threat to the news-gathering process not a serious crisis at this point?

Few people – likely including Snowden himself – would contest that his actions constitute some sort of breach of the law. He made his choice based on basic theories of civil disobedience: that those who control the law have become corrupt, that the law in this case (by concealing the actions of government officials in building this massive spying apparatus in secret) is a tool of injustice, and that he felt compelled to act in violation of it in order to expose these official bad acts and enable debate and reform.

But that’s a far cry from charging Snowden, who just turned 30 yesterday, with multiple felonies under the Espionage Act that will send him to prison for decades if not life upon conviction. In what conceivable sense are Snowden’s actions “espionage”? He could have – but chose not – sold the information he had to a foreign intelligence service for vast sums of money, or covertly passed it to one of America’s enemies, or worked at the direction of a foreign government. That is espionage. He did none of those things.

What he did instead was give up his life of career stability and economic prosperity, living with his long-time girlfriend in Hawaii, in order to inform his fellow citizens (both in America and around the world) of what the US government and its allies are doing to them and their privacy. He did that by very carefully selecting which documents he thought should be disclosed and concealed, then gave them to a newspaper with a team of editors and journalists and repeatedly insisted that journalistic judgments be exercised about which of those documents should be published in the public interest and which should be withheld.

That’s what every single whistleblower and source for investigative journalism, in every case, does – by definition. In what conceivable sense does that merit felony charges under the Espionage Act?

The essence of that extremely broad, century-old law is that one is guilty if one discloses classified information “with intent or 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”. Please read this rather good summary in this morning’s New York Times of the worldwide debate Snowden has enabled – how these disclosures have “set off a national debate over the proper limits of government surveillance” and “opened an unprecedented window on the details of surveillance by the NSA, including its compilation of logs of virtually all telephone calls in the United States and its collection of e-mails of foreigners from the major American Internet companies, including Google, Yahoo, Microsoft, Apple and Skype” – and ask yourself: has Snowden actually does anything to bring “injury to the United States”, or has he performed an immense public service?

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