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 …
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?
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.
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.
'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.
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.
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.
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".
"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.
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.
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.
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.
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.
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.
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).
".....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.
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.
I imagine he went into the job believing that the NSA were operating within the law. His published statements indicate that his reasons for leaking (and the information he leaked) are motivated by (and describe) the nature of the NSA's mis-behaviour.
Whatever *you* make of his actions, they are perfectly consistent with *his* understanding of the situation, which is about as much as one can ask of any human being.
The vetting process was outsourced years ago. An arrest check, credit check and a few phone calls (interviews) are all there is to it. If you note your arrests and don't lie about anything, that's all they want. When they interview people (3min phone call) they ask things like in your opinion 'is x trustworthy', 'does x have any problems or addictions you know of', etc. The security clearance vetting process is about a useful as a technical support script, just check the boxes.
If one signs the official secrets act (or the US equivalent) then this is binding and any contravention is seen as breaking the law.
Ummm nope you don't have to sign anything at all.
If you found a laptop on a train containing information about GCHQ slurping massive amounts of data from all inbound and outbound UK links, and in a fit of righteous outrage about sent it to the press so that they could expose the massive imposition of a UK.Gov agency spying on everybody. Then you are in breach of the Official Secrets Act and can be charged as a spy.
It's a very wide ranging act, and you don't even have to know it exists to covered by it, just be somewhere inside the UK, do something which breaches it, and you're an enemy spy,.
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has anyone else noticed the use of past tense in the media?
His leaks revealed that US agencies had systematically gathered vast amounts of phone and web data. (had)
Mr Snowden has also alleged that US intelligence had been hacking into Chinese computer networks. (had again)
GCHQ tapped fibre-optic cables for data, says newspaper (tapped is again past tense for the headline)
So glad they have now stopped, can take my tin foil hat off.....
I would hope that you would expect them to be abiding by the law both morally and legally. As Ms Chakrabati most succinctly observed on the wireless this morning " If I was to break in into your home and copy the contents of your filing cabinet, pile it in bin bags and take it home to store it for 28 days, would you not be mildly put out?"
Here is how i see this playing out, he will go 'on the run' in Hong Kong to escape any extradition back to the states, there will then be two conspiracy theories about what happened to him.
1. CIA agents got to him and he's now either dead or in some secret jail
2. Chinese agents offer the comes to works for their intelligence agency and they claim to the media that they don't know where he is and has possibly left their country
Once NSA, Always NSA. Is that the Mantra that Captures and Holds Intelligence Personnel with SMARTR R&R?
To Create an Intelligence Enemy identifies its Intelligence Source Suppliers, Victims of Provisions Resulting in the Hubris and Madness that be Conflict and Anarchy ….. in an Age now when all can be known and be digitally supplied in Special Applications ProgramMING with Cosmic MkUltraSensitive Level Feeds to Seed/Promote and Promulgate. Imaginatively Procreate and Preserve in Memory and History, Tales of their Findings in Special Applications ProgramMING Texts and Virtual Machine Driver Tests.
What's missing here is a legal analysis of what "INTERCEPT" means. and I think it all hinges on whether the bulk content is read by a human or by a machine.
If "INTERCEPT" means "A computer reads and analyses the contents of the communication and delivers 'just cause' for the contents to be read by a human" - then NSA and GCHQ are operating ILLEGALLY because that's what has happened here.
If it means "A person reads the contents of the communication without 'just cause' " - then they are operating LEGALLY because that's NOT what happened.
If I route all the email in the world through my electricity meter - have i 'intercepted' it?
I predict a "Plague of Lawyers" .
This is the most sensible comment I have seen!.
By definition 1, a LOT of what ISP's do as BAU would be unlawful, or very close to it, think firewalls inspecting packets, anti spam filtering etc.
It is the difference between capability and action, so "just" slurping all the data into a buffer which is held 'in case of request for lawful access" cannot as far as I see be against the law. Without a lot of clarification if it was networks would be impossible to run, switches and router routinely 'buffer' packets, usually for just milliseconds but there is no quantative difference between that and a few seconds buffer for retry, or a few mins buffer for possible traffic management or a few days buffer for possible later legal intercept....
So buffering the whole internet in transit by GCHQ is not against the law, What you do with the buffer may be, but as far as I have seen so far nobody is claiming illegal access to the data.
LarsG: "....The country that is supposed to protect the individual, promote freedom of speech and guarantee their privacy and freedom of expression... is a backdoor oppressor of these rights.The worst part is that it is all underhand... They can't very well criticise other regimes now... because they have become a regime with the collusion of big business in the name of security."
The 'Land of the Free'? ....It was always a lie. It was just a glossy brochure, tourist guide, and press-pack marketing campaign for USA Inc. In a perfect world your truths would be on the marketing materials. All of America should watch' The Lives of Others' (2006) and read George Orwell's 'Animal Farm'!
The two alleged espionage violations are of:
18 U.S.C. 793(d) "(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document ... 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 ..."
18 U.S.C. 798(a)(3) "(a) Whoever knowingly and willfully communicates ... 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"
Far from injuring the United States, I believe Snowden's disclosures are in the _interest_ of the United States. Recall Justice Brandeis: "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
Absent espionage, the theft charge seems downright petty.
I find the whole thing weird because we've known they've been doing this for about a decade. I mean, this is not a surprise, I believe the Reg itself reported various law enforcement agencies (and possibly the NSA) where vacuuming up cell phone records, internet traffic, etc from US citizens. Also the "we'll get a warrant later" wiretaps have also been reported on. There's no surprise this hasn't stopped with a change of President, these things have always had broad bi-partisan support. Left or right, governments don't trust the people that elect them and are supposed to be represented by them.
Interestingly these things are actually completely illegal in the US. The US Constitution specifically states a search warrant can only be granted to investigate a person suspected of committing a crime (talking to someone from a different country is not as far as I know a criminal activity) and can only be awarded by a judge. This was to counter exactly what is happening now. Back in the good old days of British Colonies, British soldiers would write their own search warrants then invade people's homes without warning. Secret warrants issued by secret courts granted after the search has been executed seems to fall outside of these requirements.
Congress is not allowed to simply create a law that bypasses this, it would require a re-write of the Constitution, possibly by creating an ammendment. No small thing given this is one of the document's founding principles.
Basically anyone that engages in this practice is breaking the law, any law that permits it is unconstitutional and therefore invalid, and the legislative bodies that created, voted on and passed these laws have violated their oaths of office (to protect the Constitution), including the President at the time (G.W.). I'm not sure what punishments are suitable for willfully violating your oath of office or violating constutional law, but it ought to be every bit as final as leaking very well known non-secrets to the press.
Most of what has been 'leaked' by Snowden is simply confirmation, or reiteration, of an earlier whistleblowers 'leaks'.
And what is the value of a few poorly executed graphics containing some artwork stolen from others?
The ONLY thing Snowden is guilty of is EMBARRASSING the US government and opening up a can of worms.
Nor do I believe all of the charges have been unsealed. I think he should be more concerned about having a fatal "accident" like Michael Hastings. All those car electronics are so easily hackable. Here's the algorithm:
1. Turn off braking system.
2. Engage maximum acceleration.
3. Bye bye, sucker.
The actual attack code (in the case of Hastings) probably had such wrinkles as a link to the GPS and was designed to reside only in volatile memory.
"1. Turn off braking system.
2. Engage maximum acceleration."
Can't use that one. Toyoda USA have it patented.
Arrange a "terrorist" bomb on a routine passenger flight carrying Snowden to his next destination, and then blame (whoever's out of favour that week; can't be Libya any more as our "special friends" in the UK need Libyan natural gas because they don't like fracking yet). That'll work.
If it has been confirmed any certified in documents leaked by Snowden that the NSA spied on Hong Kong "government" facilities as well as other "friendly governments of the USA, this will place a severe damper on USA relations with most other developed nations - the always following UK government being one of the major exceptions.
Plus talks between President Obama and the Chinese Premier Xi Jinping about "Chinese hacking of USA corporations and government operations' will be for naught if the leaked documents also show that the NSA hacked computer systems at one of the major universities in Mainland China.
At the very least, these revelations show extent to which US government and people have become paranoid and secretive in light of 9/11 tragedies. Unfortunately all the $billions spent of 'National Security' in this vein has no affect on the possibility of another successful terrorist attack in the future, no matter the level of national defense diligence, since there no guarantees of total prevention.
In one way the terrorist enemies of USA may have gained a victory - in that the extreme actions of a few Anti-USA nutters with very low resources financially could bring a large and powerful country like the USA to a state of seizure and paralyzing fear for more than ten years.
without batting an eyelid, yeah! I saw this on the bbc on Friday, and thought: jeez, they SHOULD have tried to phrase is more... obscurely. Given the obvious kettle-pot situation. Because, like, I don't expect "theft and espionage" were used to demonstrate the twisted sense of humour, our cousins on the other side of the ponds are not exactly renowned for it....
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"What are the boundaries of the "OSA" ? For example, is a ship in foreign waters still subject to it?" The Official Secrets Act is a law that applies to all British citizens. Under the law, even if you have not signed the statement, if you are a British citizen and knowingly leak a secret anywhere in the World then you are liable for prosecution. Your only defence could be that you did not know it was a secret, but if you have signed the statement then this will be used in court to show you did know. There are some clauses for "disclosure" but you'd better be pretty sure you're OK'd to disclose anything as the penalties can be pretty harsh! And it is no longer OK to claim the disclosure was "in the public interest", they got rid of that clause to stop people claiming they were whistleblowers when they sold secrets to the newspapers.
Interesting, thanks for posting this.
Does this cover original research?
If so then a lot of Universities must have a stack of theses that are never published, or substantially rewritten because they infringe on a classified patent by accident.
Its a huge issue, because patenting costs a fortune and being told by the "Men in Dark Grey Suits and Glasses" that your blockbuster invention happens to be classified is a real bummer.
The best approach is to be completely open, in the event something does infringe then the courts have to prove intent ie you are already working on something that could lead to a breach eventually.
Scientific discoveries are often lost by excess secrecy and inventors "taking their ideas to the grave" ... !
Case in point, I am working on something at the moment and suspect that my post is being monitored.
Can't prove anything of course but when I enquired they said "normal delays"... Um, yeah right.
"Opened by xxx".. and the delicate static sensitive components inside torn out of their packaging and smashed beyond repair despite careful packing, resulting in yet ANOTHER delay to my research while replacements are sourced.
Grr, I hate it when my conspiracy theories are proven true.
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