Former U.S. intelligence contractor Edward Snowden is now living in exile in Russia, fearful that if he returns to the United States he’ll be arrested on espionage charges.
The irony is that the charges against Snowden, who was a computer expert at the high-tech National Security Agency, come from a law that dates back to before most Americans could listen to the radio, much less watch TV or surf the web.
The U.S. Justice Department’s charges against Snowden include theft of government property, unauthorized communication of national defense information and willful communication of classified communications intelligence to an unauthorized person. The last two charges stem from the Espionage Act of 1917, passed during World War I.
Stephen Vladeck, a law professor at American University in Washington, is an expert on the Espionage Act.
“It was passed as a way of trying to prevent individuals who are privy to what the statute calls ‘information relating to the national defense,’ what we now understand to be classified information, from disclosing it, from sharing it, from posting it, from moving it – even from holding on to it if they are not authorized to hold on to it,” Vladeck said.
The Espionage Act, says Vladeck, has always been the principal tool the U.S. government uses to prosecute not only spies, but also those who leak classified information without authorization. In recent years, the Obama administration has especially active in using the law against leakers.
“There have actually been now about a dozen prosecutions of national security leakers under the Espionage Act,” he said. “And those prosecutions have raised a host of questions – the most difficult of which is if it’s a crime for someone like Snowden to distribute this information, isn’t it also potentially a crime for The Guardian, The New York Times – you and me – to distribute this information once you receive it?
The dangerous line
“That’s the very dangerous line that most folks worry about when it comes to the Espionage Act,” Vladeck added.
Another legal expert who worries about the use of the nearly century-old law these days is Aziz Huq, a constitutional law and national security specialist at the University of Chicago. Huq says the Espionage Act is a very long and complicated law with a dozen or so provisions that can be interpreted in various ways.
“One of my favorite examples of the breadth of the Espionage Act is that it’s arguable that every time someone reads a newspaper article that contains details of the documents that Snowden has released, they are committing a violation of the Espionage Act,” Huq said.
This is so, he explains, “because the Espionage Act can be read to include the receipt of information that you reasonably know was once classified and has never been declassified. So that’s how broad the Espionage Act goes.”
The ‘intent requirement’
Vladeck says the Espionage Act also presents another difficulty for the modern day defendant – it doesn’t contain what has come to be known in later decades as the ‘intent requirement.’
“The government doesn’t have to show that someone who violates the Espionage Act meant to harm the United States or meant to help a foreign power or had some kind of bad faith motive,” Vladeck said. “All the government has to show is that the defendant knew or should have known that the information, if it got out, would harm the United States or would help a foreign power.”
And that has made a government prosecutor’s job fairly easy in espionage cases, he said.
Since it first took office in early 2009, The Obama administration has prosecuted seven cases against leakers - about half of all those brought under the Espionage Act. Vladeck says the idea is send a warning to prospective whistleblowers.
“That’s the government’s hope,” said Vladeck. “The government would not be so aggressively and so zealously pursuing these cases if it didn’t believe that one of the effects of these prosecutions would be to deter future whistleblowers.”
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