The debate about whether Edward Snowden is a public interest whistleblower - the “Paul Revere” of the digital age, as his father and lawyer have dubbed him, or a “traitor”, as former vice-president Dick Cheney (and a number of other US luminaries) have damned him, has taken on a new intensity.
While Snowden himself remains out of sight - last seen in the transit lounge of Moscow’s Sheremetyevo International Airport - the rest of the world has argued the toss about whether, as Ban Ki Moon told the foreign affairs committee of the Icelandic parliament in Reykjavik this week, the young man had “misused” digital communications, whether he had bravely acted out of public interest or whether his actions could be classed as espionage.
To answer this question, it’s instructive to focus on the nature of the offences alleged against him. Snowden is currently charged with two offences under the Espionage Act and a further offence of theft of government property.
The Act was passed in 1917 following the United States’ entry into the Great War and despite amendments in 1921, has survived, partly due to its use as a powerful deterrent in the Cold War and partly due to the relatively few prosecutions for unauthorised leaking. However, since the Obama administration came into office, charges made against current or former public servants for offences under the Espionage Act are increasing. Snowden becomes the eighth person to be charged and there is potential for further charges to be brought as the situation progresses.
What do the laws say?
The first offence contained in section 793 (d) concerns the “Unauthorised Communication of National Defence Information”. It requires the possessor to have “reason to believe that [the disclosure] is to be used to the injury of the United States or to the advantage of any foreign nation”.
The second offence, concerns the “Wilful Communication of Classified Communications Intelligence Information to an Unauthorised Person”. Section 798 (a) (3) criminalises unauthorised disclosures including the publication or use of information “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”.
While both offences are aimed at capturing acts of spying, both also contain elements relating to disclosures which may be harmful to the United States. The sections are deliberately open to wide interpretation, extending beyond risks of physical harm to also prosecute disclosures harmful to reputation.
The effect is that while those spying for a foreign power are easily caught, whistleblowers who make the difficult choice of bringing public attention to acts of wrongdoing can easily be dealt with by the same provisions. The sections fail to allow for consideration of the public interest benefit of any disclosures made, a deficiency which is further compounded by the lack of an available public interest defence.
What are the precedents?
Parallels and distinctions may be drawn between Snowden and recent disclosures by Tom Drake and Bradley Manning. Drake was a senior official in the National Security Agency. He disagreed with the Agency’s decision to choose a data collection programme that had a higher cost and was more intrusive to privacy than an alternative. Drake chose to escalate his concerns through official channels, approaching his superiors in the first instance before turning to the NSA Inspector General, the person tasked with oversight of agency activities.
After being dissatisfied with the response he then chose to approach the Department of Defense Inspector General before going to both the House and Senate Committees on intelligence. Still unsatisfied, he took his story to the Baltimore Sun and was promptly charged under the Espionage Act. Drake secured a deal with the prosecution to plead guilty for the misdemeanour offence of “wilful retention of classified information”.
In contrast, Private Bradley Manning the US Army intelligence analyst chose to disclose thousands of documents to the online outlet Wikileaks. The disclosures relate to activities by the US military in Iraq and Afghanistan as well as diplomatic cables. Manning has pleaded guilty to 10 of 22 charges relating to a range of offences and courts martial proceedings are ongoing. One of the contested charges concerns the Espionage Act.
As with Manning, from available news reporting, it would appear that Snowden did not attempt to raise his concerns using official channels. One must ask why individuals are choosing to bypass available mechanisms to take the risk of going public. The Drake example may provide an indicator that the accountability mechanisms that are in place may be mistrusted at best, ineffective at worst.
Whistleblowers now at risk
Questions must also be raised about available whistleblowing protections. Whilst the Obama administration supported much needed reforms to the Whistleblower Protection Enhancement Act, which passed at the end of 2012, whistleblowers in the US intelligence community were excluded from the provisions. Instead, Obama signed an executive order to require agencies to establish new internal procedures and to protect against reprisals. Legislative reforms to the Military Whistleblowers Protection Act have also been tabled.
While these are positive steps, the number of high-profile unauthorised disclosures suggest the need for a detailed forensic review into the accountability mechanisms and protections available. Considerable reforms are urgently needed to the Espionage Act to ensure that cases of alleged espionage are prosecuted using separate and distinct legislation to provisions concerning unauthorised disclosures ensuring that the potential harm and public interest value in any disclosures be effectively realised.