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back to article US DoJ: Happy b-day, Ed Snowden! You're (not?) charged with capital crimes

Edward Snowden, the former security contractor who leaked secret NSA documents to The Washington Post and The Guardian newspapers, received an unwelcome birthday present on June 21; namely, he has been formally accused of spying by the US government. In a sealed criminal complaint, federal prosecutors charged Snowden with …

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Please

tell me he is blonde and likes shagging without Mr Raincoat?

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Headmaster

Re: Please

@Eadon

The Oxford English Dictionary also records that blond as an adjective is especially used with reference to women, in which case it is likely to be spelt "blonde", citing three Victorian usages of the term.

to use your own parlance;

EADON ENGLISH LANGUAGE FAIL

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Headmaster

Blonde

And, IIRC, is originally a French word.

Like metre, centre and phrases like trou du cul (chucked in especially especially for prominent English language failers)

And before someone says 'We talk Ingerlish in the US of A, you don't. You speak Spanglish as words like humor, rumor, color are the Spanish spellings rather than misspellings of the English. Star-Spanglished Banner, and so forth.

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Anonymous Coward

Re: Please

Also Blondie was not Debbie Harry, it was the Group.

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FAIL

Re: Please fail again

@Eadon - double FAIL, I'm afraid. Please check the very last part of the OED's etymology (and yes, this is a verbatim copy/paste as I actually paid a lot of my own money for the OED on CD-ROM):

blonde, blond, a. and n.

(blɒnd)

Forms: 5 blounde, 7– blonde, 8– blond.

[a. F. blond, blonde yellow-haired, ‘a colour midway between golden and light chestnut’ (Littré), = Sp. blondo, It. biondo:—med.L. blondus, blundus yellow (explained in a passage quoted by Du Cange ‘flavus qui vulgo dicitur blondus’). Origin uncertain: see Diez and Littré. In English used by Caxton (in form blounde); reintroduced from mod.Fr. in 17th c., and still sometimes treated as French, as to be written without final e when applied to a man, esp. substantively, a blonde; in N. Amer. commonly written blond like the Fr. masculine, but in Britain the form blonde is now preferred in all senses.

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Childcatcher

Re: Blonde

You speak Spanglish as words like humor, rumor, color are the Spanish spellings rather than misspellings of the English. Star-Spanglished Banner, and so forth.

You are, as we say here, batting 500. Spanish has nothing to do with the absence of the U in humor, rumor, color, and so on. This derives from the efforts of Noah Webster, who very systematically worked to differentiate American "English" from that of Britain. His motivations, though, were patriotic, so you have that part right-ish.

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To be guilty of espionage, don't you have to have provided information to "the enemy"? If so, is the espionage charge against Snowden the #NSA formally admitting that "the people" are the enemy? If both of those are true, why aren't "the people" rampaging through the streets and setting shit on fire on the White House lawn?

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Thumb Up

Death? Pffft. 10 years isn't death,,,,

Good question and there's probably some confusion about this, so thanks for posting this Trevor. The Criminal Law and the Uniform Code of Military Justice are different. In the UCMJ, there's a death penalty as directed by a Court Martial, in the civilian world, the worst he's looking at is 10 years and a fine.

Here's the full text of the UCMJ Article and the Federal law as applicable to Civilians afterward, its long and full of legalese, just to warn you. The Civilian law's pretty short and much more to the point.

Article 106a - Espionage

(a)

(1) Any person subject to this chapter who, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct.

(2) An entity referred to in paragraph (1) is—

(A) a foreign government;

(B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or

(C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force.

(3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.

(b)

(1) No person may be sentenced by court-martial to suffer death for an offense under this section (article) unless—

(A) the m bers of the court-martial unanimously find at least one of the aggravating factors set out in subsection (c); and

(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under subsection (c).

(2) Findings under this subsection may be based on— (A) evidence introduced on the issue of guilt or innocence; (B) evidence introduced during the sentencing proceeding; or

(C) all such evidence. (3) The accused shall be given broad latitude to present matters in extenuation and mitigation.

(c) A sentence of death may be adjudged by a court-martial for an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:

(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute.

(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.

(3) In the commission of the offense, the accused knowingly created a grave risk of death to another person.

(4) Any other factor that may be prescribed by the President by regulations under section 836 of this title (Article 36*)

The thing is that he's not in the Armed Forces, DoD employees and contractors are not subject to the UCMJ. They're subject to 18 U.S.C 798

18 U.S.C 798 - Disclosure of Classified Information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available 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—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section—

The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;

The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;

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;

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.

(d)

(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—

(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) ofsection 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)–(p)), shall apply to—

(A) property subject to forfeiture under this subsection;

(B) any seizure or disposition of such property; and

(C) any administrative or judicial proceeding in relation to such property,

if not inconsistent with this subsection.

(4) Notwithstanding section 524 (c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(5) As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

*- In case you're wondering, Article 36 basically says the President can set procedures himself if he so chooses.

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Anonymous Coward

To be guilty of espionage, don't you have to have provided information to "the enemy"?

I think you should read "providing information to the enemy" as "enabling access to information by the enemy". This means you don't have to explicitly go out of your way to deliver classified information to a drop wearing a raincoat and dark glasses, just making it available to those that are not authorised to see it is probably enough to trigger the violation - as far as I know, most foreign nations read the news.

What will be important in this process is what happens to any whistle blowing claims. He drew attention to various things that the electorate didn't really like (nor any other nation), but the question is if what he disclosed was either illegal or covert. The former strikes me as giving credence to whistle blower status, the latter means that he has illegally disclosed secret knowledge he was entrusted with, and will thus face the inevitable legal consequences (well, sort of, not sure how this goes when he's not there to defend himself).

The impact on US data hosters and service providers must have been pretty massive, it will take years of lobbying EU government to do the same to remove the stain, and you have seen that Google and Facebook et all have already started to crank the marketing machine pretty heavily, hoping to make people forget that they don't have a choice as long as those overpowering US laws remain in place.

US companies cannot fix this issue - it's US laws that pretty much remove any controls, due process and supervision that are the problem. If you're in the US, you can make pretty statements as much as you want (and even say "my data lives abroad", which only matters to handle a backdoor threat you're exposed to via outsourcing), when the dark suits walk in you have no option whatsoever because the alternative is jail time. THAT is what needs fixing. Moreover, if you have a subsidiary in the US you need to make damn sure you have fenced in that subsidiary in your infrastructure so it cannot be used to milk data from anywhere else.

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Rampaging through the streets

Isn't this the justification for US gun laws? So "The People" can keep their government in check?

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Re: Rampaging through the streets

Yes. But you don't go shooting people for snooping on your email. The shooting is reserved for when Citizens are being arrested/disappeared/killed by the government for political reasons. While this whole thing sucks, nobody but the crazies are talking revolution and they're always talking revolution so they can be ignored.

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Re: Death? Pffft. 10 years isn't death,,,,

There is also the small print that says we can just send a drone round to kill you if we don't like you.

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Re: Re Why aren't "The people" rampaging

"Because they are watching TV or reading press that streams leftist propaganda that supports the Obama regime and its actions, even when those actions are the same actions that they abhorred when Bush was in power."

Ha ha! Are you saying they are watching Russian TV or something?

TV in USA is decidedly right-wing. (if you can call "Fox news" TV)

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Trollface

The Enemy

To be guilty of espionage, don't you have to have provided information to "the enemy"?

He provided it to The Guardian. What more do you want!?

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Unhappy

(@ AC 22nd June 2013 09:09 GMT)

'I think you should read "providing information to the enemy" as "enabling access to information by the enemy'

Yeah, just like in the Pentagon Papers case, where the person responsible for the leak wasn't even charged, if my memory doesn't fail me. Again, given the current sorry state of the American Judiciary I wouldn't be surprised if Snowden gets a life sentence, or even a date with a firing squad.

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Anonymous Coward

Re: Re Why aren't "The people" rampaging

"Because they are watching TV or reading press that streams neoliberal/rightwing-nutjob propaganda that supports the military/industrial regime and its actions"

FTFY.

Take a vacation, Eadon. You're sounding tired. When you get back to your cell at Microsoft, it'll all make so much more sense.

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Apparently Popehat mostly agrees with my take on this. Hunh. Wince when do my armchair lawyer questioning and an uberlawyer like Ken ever agree on things? This cannot be a good sign.

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The Enemy

I believe it was Pogo in 1970 who declared, 'I have seen the enemy and he is us'.

If that is true, then the answer to your first two questions is yes.

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Anonymous Coward

18 USC 794(a) is the relevant bit of law. It basically says if you deliver to a foreign power (check!) information that leads to the death of a US agent, then you can be sentenced to death. However, there are certain categories of information whose leak is considered analogous to the death of a US agent, and these categories include things like early warning systems, nuclear stuff, etc, and which also potentially trigger a death penalty.

Unfortunately for Mr Snowden, "Communications Intelligence" is explicitly listed. So if convicted he "shall be punished by death or by imprisonment for any term of years or for life".

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"Communications Intelligence"

Whose communications intelligence? As far as I can tell, Snowden didn't leak any details of agents' communications techniques or encryption. He exposed the extent of the NSA's spying on members of the American and foreign public. In the final analysis, if the US gov't claims are to be believed, this will put citizens' lives at risk should a terrorist organization improve its concealment techniques. No agents have specifically been put at risk.

What Snowden did is the moral equivalent of putting up a warning sign ahead of the local police radar trap. While there are laws in place prohibiting interference with police operations, the NSA are not a policing agency.

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As far as I can tell, Snowden hasn't leaked anything. He has allegedly leaked that the NSA is breaking the law, but since *that* can't be true, Snowden's allegations can't be true either, so surely they don't count as a leak.

Conversely, if Snowden's *has* leaked something, he has defended the US constitution against someone else's treachery.

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Anonymous Coward

I'm not sure it's that easy.

Snowden needed a way to prove his assertions to make sure he wasn't considered yet another conspiracy theorist, and I suspect this is where classified information may have been used - that's already an unauthorised disclosure, even if it was to a US journalist.

Secondly, to me it seems logical that knowledge about the activities themselves is protected information too, otherwise they wouldn't be able to do what they're supposed to do, and that information is now all over the planet.

It probably depends a bit on whether what was disclosed was indeed illegal or unconstitutional, because only when that has been determined can you really establish the viability of a whistle blower defence. No idea, IANAL.

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Re: As ye sow...

@BornToWin

Loser

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Re: As ye sow... @ BornToWin

I suppose you think that all the people that fought for the downfall of the Iron Curtain were also wrong, and that the Soviet governments had the right to existence. Nothing should change - the government is always right.

I just cannot put myself in the place you are coming from - if there is any logic, it defeats me, since "my country right or wrong" isn't logical.

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Anonymous Coward

Snowden joins Pirate Bay in Iceland

China too boring because of Great Firewall. Also, Iceland doesn't have the death penalty...

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Re: Snowden joins Pirate Bay in Iceland

What he needs is a country that refuses to extradite to the US. Since he now faces capital punishment, anywhere in Europe should suffice, since the terms of their extradition treaties specifically prohibit extraditions for crimes with potential death penalties.

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Re: Snowden joins Pirate Bay in Iceland

He doesn't face capital punishment, he isnt a Soldier. He faces 10 years in a Federal Lockup.

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Re: Snowden joins Pirate Bay in Iceland

Execution is explicitly mentioned as a possible punishment. He should be good in Europe (except the UK, where the 'special relationship' may well result in weaselling out of anything official).

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Anonymous Coward

Re: Snowden joins Pirate Bay in Iceland

Execution is explicitly mentioned as a possible punishment

Sigh.

18 U.S.C 798 - Disclosure of Classified Information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available 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—

[..]

Shall be fined under this title or imprisoned not more than ten years, or both.

He's not a soldier.

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Re: Snowden joins Pirate Bay in Iceland

@Frank

I'd not be surprised if the Good ol' US of A claimed that 'As he was working as a contractor for the CIA which is a military organisation they can try him under military law'

Or whatever else gives them a hard on that particular morning.

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Re: Snowden joins Pirate Bay in Iceland

Tell that to Julius and Ethel Rosenberg. Neither were soldiers, either, but both were executed for espionage: slipping atomic secrets to the Soviets. And AFAIK, neither of their disclosures DIRECTLY resulted in the death of an American, since such an action would've brought about World War III rather than just a lengthy cold war. The NSA can construe that disclosing the kind of information he did is a direct threat to national security and likely will lead to the ending of various international anti-terrorism operations and, who knows, maybe the death of American agents. I'd like to see how Snowden's level of disclosure is any less threatening than that of the Rosenbergs.

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FAIL

Re: Snowden joins Pirate Bay in Iceland

IANAL, but it seems to me that they want him in the same confinement as Arron Swartz.

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Big Brother

Re: Not exactly...

You have been lost on the way to the Nazi thread of yesterday. Please let me redirect you....

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Devil

Re: Not exactly...

Is that you, Mr Rumsfeld?

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Paris Hilton

Re: Not exactly...

Fuck me, who let Ted Nugent in?

Paris, cos she's cocksucker, too.

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Re: Not exactly...

I hope you get aids

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Re: Not exactly... @ BornToWin

OK - I'll bite. If you are not a troll, explain how you see the situation such that the government is right, and Edward Snowden is wrong. I'm always willing to be educated, and I'll keep checking back for 24 hours to see if you have replied.

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Big Brother

Re: They don't like it...

"Stealing data" is not the problem.

Behaving like unaccountable royalty of bureaucracy that doesn't need nor want control by law or scrutiny by their paymaster is the problem.

Mr. Hopey Changey of Chicago, the Lawyeresque President of the Most Transparent Administration Evar doing the shilling for this control freakshow is yet another problem. Can't wait for that guy to be on the way out.

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Re: They don't like it...

What, you think anyone else but Obama would have done differently?!? This was lead by the security apparatus of the NSA/CIA/FBI, et al. They don't change from President to President - most of them are agency guys.

ANY President would have had the NSA come to them and say "We think we can stop more attacks on the USA by doing this great listening program...it will save lives, guaranteed." And then whatever President sitting in the White House at that time has to figure how he can POSSIBLY say anything but "Yes" and be able to defend themselves, their party, etc. in the event of another 9/11 scale attack a few years later.

Obama isn't the main problem - part of it is our MEDIA, which has become so polarised that politicians cannot afford to do the "right" thing even when they know it, because the media of the other side will kill them for it, even if it is basically sound judgement. And there are no points in the public eye for NOT doing secret programs, because they are so secret th public can't even be told to thank you.

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Theft charge is just to allow extradition

If the charge was only espionage then there would be no right to extradition from many countries in the world so the theft charge has been added on to make an offence that could get past a stupid (or bribed or coerced) judge as a valid reason for extradition. Spying on the USA is not an offence outside the countries with military alliances with the USA (NATO, and ANZUS members and a few others).

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Pirate

Re: Duncan Macdonald Re: Theft charge is just to allow extradition

".....the theft charge has been added on....." Very likely, but the Hong Kong (meaning Beijing) authorities can still refuse to extradite as they will probably consider that the main charge is political regardless of the additional theft charge.

But, don't be too harsh on the NSA/CIA/DoJ here, they are actually lagging what happens in the corporate World. As part of our security policy, we put copyright statements on all our documents and emails, both internal and external, and distribution lists on anything more important, so that if someone makes unauthorised copies or gives it to someone we don't want it to go to, then we can hit them with copyright infringements. As well as the criminal record and additional jail-time, you'd be surprised how much of a hole that can put in your career prospects.

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Re: Duncan Macdonald Theft charge is just to allow extradition

Copyright infringement is primarily a civil matter and in such case would not be associated with criminal record.

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Motives.

What gets me is that, here we have an individual that chose to work in the security industry within both the CIA and NSA and yet is concerned by both organisations activities even though both are known for what they are.

How did he pass vetting? Was it his intention to infiltrate from the beginning? If one signs the official secrets act (or the US equivalent) then this is binding and any contravention is seen as breaking the law.

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