What illegal actions did Snowden disclose? If a piece of paper says it’s illegal, but no one in power is ever prosecuted for it, is it still illegal?
Simple answer: no. A “whistle-blower” provision was needed for private businesses, because the courts were not empowered without it, to take any action on behalf of what was right. In the case of government situations, the courts and the rest of the legal system are already involved, and can decide not to prosecute, or to pardon or absolve the person of being held accountable, if justified.
Besides, there’s no way to write in any kind of “except sometimes” sub rule into an anti-espionage act, without either making it impossible to prosecute anyone at all, or without making everything dependent on the emotional intent of the person who is charged.
Fight my ignorance here! Can you elaborate on this? Surely jury nullification is always possible? Or would there not be a jury?
Snowden is actually a good example here. Leaking did lead to significant changes in the case of Snowden. There are indeed other similar programs that remain, but bulk surveillance has been meaningfully curtailed by both private and public actions resulting from Snowden’s disclosures.
I’m saying we should punish whistleblowers less harshly than spies. The only way to accomplish that is to examine the purposes and/or effects of the disclosure.
Most of those terms have common legal definitions that have been endlessly litigated in similar contexts so there’s tons of precedent, but I haven’t drafted an entire statute for you here. Is there some particular term that you think is too vague?
I’m not convinced that is correct. The evidence I’ve reviewed suggests he was, in the words of my exception, “without the intent or expectation of personal profit or to benefit a foreign power.” Which parts of the exception in particular do you think he wouldn’t meet?
What are you referring to with “such an argument”?
Lots of illegal actions, some of them since held to be illegal by the courts, which is about as good as you can get considering they aren’t criminal laws.
As a matter of evidence law, Snowden would not be permitted to tell the jury why he took the actions he took, or what beneficial effect they had. By contrast, the US government would be permitted to put on testimony about the negative effects of the disclosure without being subject to meaningful cross-examination.
Huh? Would that not be covered under mens rea?
The fact of the matter is the government is not likely to create an environment where disgruntled intelligence workers can go do an information dump to the New York Times and then claim to be a whistleblower.
I’m not sure what’s unclear. The government doesn’t need to prove the discloser’s motive; they need only prove that the disclosure was intentional. That’s the relevant mens rea here. When Ellsburg tried to introduce evidence of his motivation, the Court ruled it to be irrelevant and prejudicial, and so it was excluded. The same thing would happen to Snowden absent a change in the law.
Richard, under your proposal, who would make the determinations of whether the intelligence programs are legal or not: the judge or the jury?
The usual division between findings of fact and conclusions of law would have to apply, since it is more or less constitutionally required at this point.
When lawfulness is an element, juries are instructed as to the relevant legal framework and asked to apply it to the facts. So, for example, a jury might be instructed that an officer is privileged to use force only during a lawful arrest, and be instructed on the law of probable cause in order to determine if the arrest was lawful.
I suppose that in this context the problem is that evaluating the lawfulness of the actions may require information beyond that which the defendant disclosed. But you could put that problem on the putative whistleblower. If the government can show (say, in a closed hearing, or maybe even in camera) that disclosure of additional secret information would be reasonably necessary to evaluate the legality of the actions, then the defense could be made unavailable.
An alternative is to require an objectively reasonable belief on the part of the defendant that the program is unlawful–which is how whistleblower protections often work. This would look very similar but instead of having to disclose other secrets to prove the program legal, the government could just argue that not knowing certain important elements meant that the belief wasn’t objectively reasonable.