One of the arguments pressed by Edward Snowden is that, like Daniel Ellsberg, he would not get a chance to explain his motivations, or the beneficial effect of his actions, to a jury in his espionage trial. And that he would be treated the same as a spy who sells secrets for his own profit. As a legal matter, he is correct.
But whether that’s fair or unfair is a matter for debate.
I think we ought to amend the Espionage Act to contain the following affirmative defense:
This would be a very narrow exception. It only applies if the activities were, in fact, illegal, and if there was no way to get them to stop by reporting them internally. Indeed, even if the internal reporting is shown to be futile, it still has to be fully exhausted unless there is evidence it will lead to retaliation. And after all of that, the defendant still spends up to 2 years in prison.
Why shouldn’t we have a narrow, limited defense like that?
Mainly because it’s possible that the harm to the nation from the espionage far outweighs the benefit of having the illegal activity stopped, and this is not a decision that should be left to random individuals.
But also because what is or isn’t illegal is not always clear-cut, and a law of this sort could encourage people to commit espionage if in their opinion they are confronting illegal activity.
As a thought experiment, you might want to consider making this type of narrow exception to all sorts of other laws. Like, suppose you made it an affirmative defense for murder. I suspect you’ll be thinking along the lines of the above.
Isn’t that just another way of saying that government officials should have the power to do secret illegal things if they think it helps the country? I don’t believe that. I believe that if the government wants to do something that is currently illegal, then it needs to get the laws changed first. And that’s certainly true if the illegal thing would not be subject to any public investigation or democratic pressure.
This is true, but the law not being clear-cut is part of what makes this a risky and narrow defense, no? You would only disclose if you were quite certain the program was illegal, otherwise you wouldn’t be entitled to this defense.
It already is a defense to murder that you took the action to stop certain forms of illegal conduct. You can kill a man in Texas for trying to steal your TV dinner.
I agree. But ISTM that you’re saying anything other than allowing a sort of vigilante justice amounts to allowing the government officials to “do secret illegal things if they think it helps the country”. I assume you don’t approach things with this assumption WRT other crimes. The general idea is that you have other government people who you hope will inform the proper authorities.
[Note: I appreciate that your law is tailored to apply in cases where no alternative exists. But that doesn’t relate to this point. What I’m saying is not that in that particular circumstance there are other approaches available. Rather, that in toto, not having this law does not amount to “government officials should have the power to do secret illegal things if they think it helps the country”, because that will generally not be the case, and government officials who think otherwise face a risk of ending up in jail.]
I don’t think so. Snowden did it even though your law didn’t exist altogether. Having your law would only people who were even less bold than Snowden to do the same.
Of course you’re right that someone who was completely 100% risk-averse would probably not be encouraged by such a law. But a lot of people live closer to the edge, some closer than others.
ISTM that that law is much less broad than your proposed one. (And do you support that law?)
The OP should consider that his proposal probably wouldn’t help Snowden. He disclosed an awful lot of things, and a great many had nothing to do with illegal activity.
Take for example the allegation that the US spied on friendly foreign leaders. There is no law against that. He asserts that eavesdropping is wrong, but it’s perfectly clear that his is a political or ethical judgment, not a constitutional or legal opinion.
So even if you believe he stole secrets on other illegality - which I believe to be a suspect conclusion - his activities unquestionably went further into perfectly legal activity.
Plus, there doesn’t seem to be any evidence that he made any kind of effort to blow an alleged whistle by going to the Inspector General or Congress – something that other whistleblowers have actually done, which I do think should be afforded significant protections.
I don’t think your analogy to crimes not involving the government or the illegal actions of the government really works. The whole point of whistleblowing is that the only real check on government misconduct is the government’s own internal processes and public pressure. And this defense only applies if the government was informed and did nothing or had non-functioning internal reporting processes.
I think we have to choose between encouraging illegal government activity or encouraging illegal disclosure of that activity. Right now, I think the incentives aren’t quite correctly aligned if it take someone willing to ruin their entire life to speak up about illegal programs. I’m not saying we should shift the incentives all the way to the other side. Just nudge them a little closer to the correct balance.
I’m not familiar with every disclosure made by Snowden, nor do I know all the details of what he tried to do internally or why he didn’t do more. But it seems to me that those should be relevant questions at his trial, whereas right now they are legally irrelevant. They shouldn’t be irrelevant to determining his level of criminal culpability.
If we’re assuming a valid reason for the disclosure, why have a sentence at all?
What kind of harm are you talking about? I can think of a few off the top of my head, but they are major, and deal with either the military or weapons technology. Are there other types that would harm the country so much we dare not allow its propagation?
What you’ve said is enough, but such revelations could also severely damage US relationships with other countries, undermine US espionage efforts, put the lives of agents at risk, and so on.
Because the defendant still broke the rules. And even under this defense, there’s still more they could have done, because there’s always more things to try within the confines of the law.
I just think that breaking the rules as a whistleblower is not as punishment-worthy as breaking the rules as a spy. And I also think that there’s public policy benefit to having slightly more whistleblowers.
Why should they be relevant at a trial rather than just a basis for prosecutorial discretion? Obviously if a guy like Snowden leaked classified documents that showed the CIA was killing babies for sport, he wouldn’t be prosecuted.
But if you’re saying that he is in fact guilty, but he should be afforded lieniency in sentencing, I don’t think we are talking about a defense to the charges. That usually means that someone should be innocent of charges because circumstances mean they did nothing wrong. A judge most likely has considerable discretion on how to sentence Snowden if he’s convicted.
Other than clearing that up, you suggest that someone should be able to make a subjective decision on whether blowing a whistle through proper channels will result in the change that person desires. This is preposterous under any circumstances.
First, Snowden knows jack shit about the law and the Constitution. He has opinions on what is right and wrong, but he isn’t the arbiter of what is legal and what isn’t. That job belongs to Congress, various lawyers in the Executive Branch, and ultimately the courts. We can’t have a system in which some random Joe Blow decides that something is illegal so they have a right to leak it because they know the rest of government won’t agree with them.
Imagine how silly this would be as applied to regular criminal law: “I didn’t report my neighbors crime of looking at me with the stink-eye because I thought the cops wouldn’t do anything; so I took the law into my own hands.”
If the CIA is killing babies, and someone discloses it, that person should be less culpable for the disclosure than Aldrich Ames, whether or not there’s some prosecutor out there zealous enough to prosecute.
This represents a misunderstanding about criminal law. Lots of defenses only reduce but do not eliminate culpability. A very common category is defenses to murder that reduce the charge to manslaughter. Technically, those defenses often work by negating a particular charge and only allowing a lesser charge, but there is no lesser charge in this context. Obviously, we could structure the defense that way, but that’s a formalistic distinction, not a real one.
I have to say I think this part will get you in trouble.
This is highly suspect and we’re in “did he reasonably fear for his life or safety” kind of territory.
I also would like our society to learn the lessons of Snowden the way we didn’t learn the lessons of prior whistleblowers. But I’m not sure this is a clear enough standard.
Why though? There are typically plenty of channels to disclose rather that would be legal generally speaking. If disclosure is the goal, you typically don’t need to commit espionage to do that, and if for some reason you feel the need to make this public, your case should be strong enough to dissuade prosecution based on this disclosure.
I get where you are coming from, but opening up these cases to argument it was for the greater good is problematic in part because you are dealing with classified information, but also it completely undermines the system. Basically you are saying things are classified unless some person viewing it happens to think the public has a right to know. Even putting aside the differing opinions people will have on the matter, there are things that the public wants to know that should remain secret (eg. spying on other governments). Do you really want these judgment calls in the hands of a jury?
if snowden gets a pass so should the falcon because the only thing that’s different is he sold it to Russia instead of WikiLeaks he used the same logic in what he did …
I don’t see any evidence of this. If the head of your agency is actively lyingto Congress about the program in question, and other people who internally reported problems get demoted or worse, and you spoke to 10 supervisors about it without any change, why would you expect pursuing additional channels to change anything?
I agree that prosecutors shouldn’t prosecute whistleblowers as harshly. But I think the idea that you should be put in prison for life for it unless 100% of prosecutors agree with you is silly.
No, I’m really not. I laid out all of the elements in the OP, which are exponentially narrower than you’ve described.
Why are you sure leaking it will lead to change? Honestly, how sure are you that similar programs to the ones Snowden exposed don’t exist today? My point is that if your cynicism extends that far, what incentive does one have to pursue legal channels?
They are once it gets to a court, but my point was that you are giving tacit support to someone making this call on their own whether they feel something needs to be leaked. Given the ability to make an affirmative defense, you are ceding discretion to the supposed whistle blowers.
That said, I suppose I could get behind your basic point, but how exactly are you defining your terms? What does this mean:
“the means available at the time of the disclosure for reporting the illegal actions to authorized recipients of the information were
(i) fully exhausted without the illegal actions ending; or
(ii) futile and likely to lead to retaliation”
Seems fairly vague, and not at all as narrow as you claim it is. Plus, how does any of this apply to Snowden? He basically broke every rule you laid out including receiving ongoing material benefit from a hostile nation.
And you also ignored the question about the difficulties of making such an argument given the classified nature of these things.
This is exactly the situation of a soldier (or even civil servant, at least here) who has to decide whether he should or not refuse to follow an order on the basis that this order is unlawful, despite not having an expertise in legal matters.
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such revelations could also severely damage US relationships with other countries, undermine US espionage efforts, put the lives of agents at risk, and so on.
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As for the potential bad consequences (in both cases), they’re ultimately the responsibility of the authority who decided to act illegally (or to give an unlawful order) in the first place, not of the individual who disclosed the crime. And besides, you’re taking into account only the potential bad consequences of disclosing the information, and not the bad consequences of not disclosing it, while presumably the activity is illegal for a reason, which makes likely that not stopping this activity will have worse consequences than disclosing it.
