Understanding Snowden and the Espionage Act in three minutes

National Constitution Center

Former CIA analyst Edward Snowden is seeking a safe haven after leaving Hong Kong after being charged with Espionage Act violations by the U.S. government. So how is a citizen charged as a spy, when he reveals information to the press?

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Snowden is a former government contractor who had access to information about National Security Agency programs. The surveillance programs were classified, and pertained to the government’s access to phone and Internet records under a process allowed under the Patriot Act and approved by a secret government court.

The basic one-page complaint against Snowden appeared in public over the weekend. He currently faces three charges.

The charges are alleged violations of laws enacted by Congress and signed by the president, under their constitutional powers, that are contained in the United States Code.

The first charge is an embezzlement charge: theft of government property under section 641 of the United State Code. Snowden faces a maximum of 10 years in jail and a fine.

The other charges fall under sections 793 and 798 under the United State Code as part of laws commonly called the Espionage Act.

The charge under section 793(d) is unauthorized communication of national defense information. It also carries of maximum of 10 years in jail and a fine.

The charge under section 798(a)(3) is willful communication of classified communications intelligence information to an unauthorized person.

So Snowden faces a maximum of 30 years in jail, for now, with fines, and he has to return any government materials in his possession—if he returns to the United States in any fashion.

More charges can always be filed, since the case is an active investigation.(Section 794 of the act contains the death penalty as possible punishment for giving information to the enemy during war time.)

The Espionage Act came about during the World War I era. President Woodrow Wilson asked Congress to pass the act. It was amended in 1918 with the addition of the controversial Sedition Act amendments, which prohibited public criticism of the United States government.

The Supreme Court upheld the prohibitions on free speech in a famous decision, Schenck v. United States. The court’s unanimous decision included two concepts that were central to First Amendment debates for decades.

“The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic,” said Justice Oliver Wendell Holmes Jr. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

The Sedition amendments were repealed by Congress after World War I, but the Espionage Act has remained on the books, in amended form, since then. The court also narrowed its definition of unprotected free speech in Schenck in another landmark case, Brandenburg v. Ohio (1969).

The Congressional Research Service gave its opinion of the Espionage Act in January 2013 to Congress as the trial of WikiLeaks defendant Army Private Bradley Manning approached.

“A number of other cases involving charges under the Espionage Act demonstrate the Obama Administration’s relatively hardline policy with respect to the prosecution of persons suspected of leaking classified information to the media,” said staff attorney Jennifer Elsea.

The CRS also briefed Congress on a related First Amendment issue: the potential prosecution of media outlets that published leaked, classified information supplied by sources.

“While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it,” Elsea said.

“There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”

The British newspaper The Guardian and the Washington Post first published stories based on information supplied by Snowden, which he obtained as an analyst.

The CRS also talked about the conflicts involved in the extradition of a suspect charged for espionage.

“No U.S. extradition treaty currently in force lists espionage as an extraditable offense,” it says. But much of the Snowden case will probably be determined by the extradition laws of the country where he winds up residing.

Currently, Snowden is believed to be working with WikiLeaks to find a country that poses an extradition barrier to the U.S. Ecuador, Cuba and Venezuela are rumored destinations.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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