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January 26, 2014 | Posted in Classified Information, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, NSA, President Obama, Snowden, Terrorism, U.S. Code Title 18 | By Tom Wither
The editorial boards of the New York Times and Washington Post, a handful of members of Congress and others in the general public will undoubtedly continue to advocate for the extension of clemency for Mr. Snowden. The reasons why he will not be receiving clemency are pretty clear to me.
Let’s review what he’s charged with (you can read the criminal complaint filed with the court yourself). Bear in mind that this is likely only the initial set of charges. They could be amended once he’s in custody and a fuller understanding of his actions and activities is known (charges of misuse of government computer and telecommunications systems, etc.).
Snowden is charged with:
- Theft of Government Property – 18 U.S.C. Section 641
- Unauthorized Communication of National Defense Information – 18 U.S.C. 793(d)
- Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person – 18 U.S.C. 798(a) (3)
HOW MANY COUNTS & THE PENALTY IF CONVICTED
One of the things missing so far is the number of counts for each of these charges. Something the government may amend the compliant to include once Mr. Snowden is in custody or been arraigned. Statements by various NSA officials to the media have provided the following numbers to consider: 1.7 million documents stolen. 200,000 of those leaked to journalists so far. In briefly perusing the 2013 Federal Sentencing guidelines, for just one conviction of violating 18 U.S.C 793(d) or 18 U.S.C. 798(a)(3), the minimum sentence is between seven and nine years.
Even if we assume the best case, and the government treats the entire theft of 1.7 million documents as one theft, and the communication of the information to Mr. Greenwald and Ms. Poitras are treated as two counts of unauthorized communication of National Defense Information, and two counts of Willful Communication of Classified Communications Intelligence Information; Mr. Snowden is looking at between 35 and 45 years in prison, aside from whatever fines the court may impose.
Worst case, the government chooses to make a point with Mr. Snowden’s case, and they charge him with just 10 counts each (out of a possible 1.7 million thefts and 200,000 unauthorized and willful communications). Do the math for 10 counts on each charge and that’s 210 to 270 years in prison.
THE GOVERNMENT’S POSITION
Any hope that some in Congress, the public, and the media may have that Mr. Snowden will be given clemency should be tempered by the following statements:
President Obama – “…I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.”
Attorney General Holder – “We’ve always indicated that the notion of clemency isn’t something that we were willing to consider. Instead, were he coming back to the U.S. to enter a plea, we would engage with his lawyers. ”
A CRIMINAL NOT A WHISTLEBLOWER
What Mr. Snowden continues to fail to understand is something the President pointed out in his speech, and that FBI Director Comey pointed to in his remark quoted above.
“What I did not do is stop these programs wholesale — not only because I felt that they made us more secure, but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” – President Obama
You can’t ‘blow the whistle’ on a program that is implemented under a law Congress passed, the President signed, and that the Courts oversaw in concert with Congress. Should Congressional Oversight have been tighter? From what I’ve seen in the open hearings, there is a reasonable argument to made there. Should legislators and the Courts keep better pace in all areas of law regarding the rapid advances in telecommunications technology and related privacy issues? There is a case for that too.
Did those changes need to be fomented by a series of media sensationalized, unauthorized leaks of classified material describing lawful activities by the intelligence community where no evidence of willful abuse had occurred? Leaks that damaged diplomatic relations with our allies and other friendly nations? Leaks that have, according to members of the intelligence committees, caused terrorists to change their communications methods and potentially exposed military operations, increasing the risk to our military service members at home and abroad? Leaks that will in all likelihood continue because ‘journalists’ like Mr. Greenwald and Ms. Poitras care more about selling stories than they do about the safety and security of American, allied, and friendly nation’s citizens throughout the world? No, it did not.
Mr. Snowden could (and should) have gone to the NSA Inspector General, or the Director of National Intelligence’s Inspector General, or the Department of Defense’s Complaint Hotline for classified complaints. He also could have made a complaint to the FBI or Attorney General’s Office, or his company’s security office or leadership. If all of those failed, he could have gone to Congress himself with his concerns. Oversight committees LOVE to investigate potentially unlawful acts by the executive branch, and moreover, it’s their job to do so.
Instead, Snowden chose to steal 1.7 million classified documents and shared at least 200,000 of them (so far) with two members of the media, then made sure everyone knew he did it as soon as possible, so he could rise from obscurity, and show everyone that he really did know better than the collective wisdom of the members of Congress, the 15 judges on the FISA Court, and the administrations of two Presidents. Moreover, real whistle blowers have the courage to stand up and be counted, even if they must stand in a courtroom to do it. They don’t run away to a foreign nation to avoid the consequences of their actions, afraid of punishment for their criminal activities before the charges are even filed.