Charges have been filed against Edward Snowden in the US District Court for the Eastern District of Virginia. Snowden is the world’s most famous fugitive of the moment. The most comprehensive reporting on his story can be found at The Guardian, thanks primarily to Glenn Greenwald.
At the outset, it’s difficult to fully analyze the charges because the affidavit referred to in the Complaint remains sealed. The details of what Snowden did have been highly publicized, but it is of course possible that there is more to the story. Going on what we do know, dismissal is appropriate.
The first section Snowden is accused of violating is Title 18 of the United States Code, Section 641 (18 USC 641). This is the language that describes what’s prohibited:
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 …
This is the federal “embezzlement” statute. Reading from the Justice Department’s own website, it is clear that this statute does not apply to Snowden because a key element of the offense requires that the alleged thief “acted with the intent to deprive the owner of the use of this property.”
There is no indication that Snowden has prevented the federal government from using any “record, voucher, money or thing of value” he may have taken. Indeed, there’s no suggestion that he took any money or vouchers, so those are out. He may have taken records, such as the sealed FISA court order, but obviously the government still has access to that document. It’s also unclear what value if any would be placed on anything Snowden took. If the value is less than $1000, the maximum sentence is one year and people facing charges like that routinely get no jail time.
Considering the magnitude of the charge (larger offenses carry a maximum sentence of ten years), if the value was greater than $1000, that should have been included in the complaint itself. As such, it is a small enough offense that it would not normally justify extradition.
Before getting into the next statute, it should be noted that the same statute purports to criminalize the journalist:
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
The second statute Snowden allegedly violated is 18 USC 793(d):
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document … 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 … the same to any person not entitled to receive it ….
Breaking this down, it is clear that Snowden had access to certain documents, and that he willfully communicated them to journalist Glenn Greenwald. However, it is far from clear that these documents related to the national defense, nor that Snowden believed they could be used to the injury of the United States.
The key issue here is that there is no definition of the term “national defense.” I did some searching this morning and was unable to find such a definition in the US Code. The term is used so broadly in general that its meaning is vague. When a law’s meaning is unclear, it can be found void for vagueness.
What Snowden did is show the American people that our government is spying on us. It’s too much of a stretch to put this within the meaning of national defense.
The third statute is 18 USC 798(a)(3):
(a) Whoever knowingly and willfully communicates … 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;
Also in the statute we have a clear definition:
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
So here we see that Snowden did communicate, knowingly and willfully, classified information concerning our government’s communication intelligence activities to a journalist (who presumably was not authorized).
The problem is that what Snowden disclosed was not prejudicial to the safety or interest of the United States. Rather, the government’s activities are the real threat to our country.
Media reports inaccurately indicate that Snowden was charged with espionage. What’s almost funny, though certainly not to Snowden, is that Snowden is not accused of spying at all. Rather this third charge shows that he is accused of exposing that our government is spying on us.
And one last thing – at bottom the document states: “Venue is proper pursuant to 18 USC 3238.” That is false. Venue in Virginia is actually improper.
Here’s what Section 3238 says:
The trial of all offenses begun or committed … out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.
From media reports Snowden’s last known residence was Hawaii, not Virginia. If the government is claiming his last known residence can’t be determined, then venue would still be improper in Virginia and should be in the District of Columbia. If they are claiming that his offense(s) occurred in Virginia, then Section 3238 is the wrong statute for venue.