A Look At The Charges Against Edward Snowden

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124 Responses

  1. James Pollock says:

    The problem with this argument is that by publicly releasing the information, Snowden allowed the American public to know what their government is doing to them, but also lets "the bad guys" know the extent of the NSA's monitoring, as well.
    So, from Snowden's point of view, allowing the bad guys to know how extensively the NSA's monitoring is comes as an unfortunate side effect of the desired goal, allowing the American people to know that the NSA collects information about their telecommunication habits.
    However, to the prosecution's point of view, informing the American people is an immaterial side effect of Snowden's crimes, which are disclosing how much the NSA collects on forces hostile to the U.S. (terrorist organizations and hostile foreign governments, and to a lesser extent, friendly foreign governments.)

  2. Clark says:

    We, the people, are those hostile powers.

    I consider Snowden a hero and if 99% of the federal government were hung from lampposts for exceeding the limits of federal authority, I would applaud.

    That said, I think the above quote is wrong: a charitable interpretation is that by releasing the knowledge publicly Snowden is ipso facto releasing it to China, Russia, NK, and Iran.

  3. El says:

    Given what we know so far, the government doesn't appear to be able to meet its burden on all of the elements on Counts 1 and 2. On Count 1, a copy of documents would not seem to show the intent to deprive the government of the use of the documents.

    On Count 2, apparently he accessed this information illegally (or at least a portion of it, according to government sources). The elements of the second charge purport to require that Snowden would have had to have had law possession of, access to…

    Interesting.

  4. Ancel De Lambert says:

    Number 5 on the embezzlement charge may be a sticking point; proving that it was to Snowden's own use may be laughable at best. Unless Snowden made any kind of money off of this.

  5. mumbly_joe says:

    We, the people, are those hostile powers.

    It's worth noting that he didn't *just* release information about the NSA spying program. The US government honestly would have a much more difficult and embarrassing time making its case if that were the case.

    However, Snowden decided to go the extra mile and speak to Russian and Chinese press about cyber warfare operations against those countries, which frankly do make those second and third charges way easier to make, without discussing PRISM at all.

    Personally, I'm of the mind that there are no real heroes in this story. Not Snowden, and definitely not the feds.

  6. Kevin says:

    Clark, I understand what you're saying of course, but I think the time for charitable interpretations has long passed. It's time to start calling this what it is: a coup d'état by the intelligence community. If the coup had instead been staged by the military, I don't think anyone would be willing to consider charitable interpretations of their actions.

  7. The best way to contain this from the point of view of the NSA etc would be to do nothing at all. Why? Plausible deniability.. they could simply say that Snowden was a fantasist and it was all a fabrication, and through the whole thing into doubt. Instead, they just proved that they ARE doing this stuff..

  8. Chris W says:

    For Snowden's sake, I hope he's able to get to safety. But for our sake, it's better if he's captured and brought to "justice".

    If he slips away, so will our outrage over the incident.

    If he's captured and prosecuted, he'll become the martyr that keeps the issue in the public eye, and that precipitates demonstrations and protests.

  9. Piper says:

    @Clark 99% hung? Really? 99% of which are just bureaucrats trying to do a difficult job. Fired maybe, but hung? Don't you think that's even a little bit extreme for trying to serve your country? Even the petty tyrants don't deserve the death penalty…

  10. Piper says:

    We'd all be without the musings of Mr. Ken White if that were the case…

  11. Clark says:

    @Kevin

    Clark, I understand what you're saying of course, but I think the time for charitable interpretations has long passed. It's time to start calling this what it is: a coup d'état by the intelligence community.

    You're absolutely correct.

    But it's a coup against the government put in place by the previous coup d etat staged by Progressives in the 1930s who stole huge swaths of powers from the people and handed it to themselves the government.

    So a pox on both their parties. I've got no loyalty to either the USG-4.5 NSA shadow government or the illegitimate and unconstitutional USG-4 Progressive Welfare State government. I'd love nothing more than a civil war between the two with tens of thousands of bodies.

    Sadly, though, there'll probably be detante and then an alliance.

    The government of Oceania has always been at peace with the government of Eastasia.

  12. Clark says:

    @Piper:

    @Clark 99% hung? Really? 99% of which are just bureaucrats trying to do a difficult job.

    I agree – most of them are just bureaucrats trying to do a difficult job.

    Logistics, coordination, central planning, train schedules, etc. – that shit ain't easy.

  13. PacRim Jim says:

    Who knows how many thousands of other documents this guy is trading to pay his hotel bill?
    Don't assume that super-snooping is the only information he is selling.

  14. Michael says:

    I would suggest changing the name of the Dept. of Justice to Dept. of Injustice, and feel the the top layer of U.S. government should be impeached and imprisoned. But I know neither will happen.

  15. Xenocles says:

    There is a case to be made that by releasing the information to a major newspaper for publication you have made it available to the entire world, including openly hostile powers. (I make this statement with absolutely no endorsement of the government's actions in this case or any other.)

  16. David says:

    Espionage charges usually describe someone with classified information leaking that information to powers hostile to the United States government.

    We, the people, are those hostile powers.

    You analyze (or propagandize) as if revealing information to US citizens didn't also in fact entail revealing that information to foreign entities that are plausibly understood as "hostile powers".

    Your rhetoric would fit a circumstance in which the information had been revealed to a set of all, and only, US citizens and in which the government had then called all, and only, the members of that set "hostile powers". In that circumstance– contrived and fanciful– your complaint would make sense.

    We're not in that circumstance. Instead, revealing to Us, The People, can scarcely occur without also revealing to Them, Those Who Will Bury Us.

    I reckon they're the ones on whom prosecutors will focus when analyzing the elements of the espionage charge, just as James Pollock rightly pointed out in the post's first reply.

    The deeper question, of course, is how to maintain secrets at all while navigating between hyperclassification on the one hand (keeping The People in the dark) and pervasive technologies of distribution and consumption on the other (ensuring that every entity abroad learns whatever The People learn at home).

    Are you saying that the government should classify nothing? And that that's a rational approach to political economy and defense?

  17. Roscoe says:

    I suspect there is very little relationship between the current charges and the charges for which Snowden will eventually be indicted. The feds just needed to get something filed that would meet the probable cause standard, so they could (try to) get Hong Kong to hold the guy. The feds will have a better idea of what they can actually prove (or are willing to try to prove) after the GJ investigation.

  18. Robert Q says:

    I was surprised to read that he was charged with theft (of government property). Being from Canada, I know of a well-established criminal case which held that you can't be convicted of theft of information or intellectual property, provided that the "victim" isn't actually *deprived* of that information. If the "victim" still *has* the information/intellectual property, then it *can't* be theft. You have to actually take something *away* from the victim. Simply copying and/or disseminating (proprietary) information is not "theft" under Canadian criminal law (not counting potential criminal charges for copyright violation).

    Now, the case was theft from a private party (a company), but I presume the same logic applies to the government.

    If I steal a physical object from the government, then they are obviously deprived of that stolen object. So I wonder, is government deprivation an (unwritten) element of the US theft of government property charge?

  19. David says:

    Side observation: some folks are intelligent enough to become aware of ideological models and oases of opinion on the fringe, but not quite intelligent enough to recognize, resist, or realistically deconstruct their seductive allure when they're shiny but flawed. The ensuing embrace leaves Procrustean rubble.

    One symptom of this noetic/narcissistic frenzy is a lack of rhetorical self-control and reality-based moderation in characterizing the lives of others and the value of those lives.

    This is why discussions of difficult political and cultural issues so often degenerate into defensive rationalization and offensive reification.

    Isn't that interesting?

  20. David says:

    @Roscoe, That sounds right, except that the standard of "probable cause" surely gave way to any predicates that seemed necessary and sufficient to satisfy the terms of the extradition treaty between Hong Kong and the US as Hong Kong is likely to interpret it when rankled. Hence the whiff.

  21. papertiger says:

    Snowden allowed the American public to know what their government is doing to them, but also lets "the bad guys" know the extent of the NSA's monitoring, as well.

    What "bad guys"? The only people these clowns have stopped was the "elect Romney for President" crowd.

  22. Lee Reynolds says:

    The United States of America has no legitimate government at the national level. State level governments are often corrupt, but not often truly illegitimate. Counties and cities and generally have legitimate governments. Our nation as a whole however, does not.

    What we have instead is a set of entrenched power elites that are unaccountable to the people and have hijacked the organs of the state in order to maintain their own position. Or elections are not the means by which representatives of the people are chosen, but merely a contest to see which corrupt political clique gets to be in charge for a while.

  23. David says:

    @Robert Q
    When it comes to classified content, there may be a distinction worth drawing between "still has the ip" and "still has control of the ip", such that thwarting either may count as theft.

    Regardless, it's also possible that the theft count refers to a laptop or to a uniquely configured software or policy instance on a laptop. It wouldn't be unusual for a government contractor to be using government-issued hardware.

    Since the explanation of how the elements are supposedly satisfied is under wraps, there's no way to know the theory and its application in this instance.

  24. Black Betty says:

    The government will attempt to argue that by releasing this information to the public, Snowden released it to the "bad guys". Unfortunately, the bad guys are already fully aware that our government was collecting on them in every possible way. And our government knows it. There will be evidence to support this fact as well. The government will have a very difficult time making that argument stick.

  25. Xenocles says:

    I have no doubt that Snowden has broken the law. Unfortunately, the same can be said for everyone who ever went to the Gulag, or to Auschwitz, or who signed the Declaration of Independence.

  26. David says:

    @papertiger

    The only people these clowns have stopped was the "elect Romney for President" crowd.

    You know this (or think you know this)… how?

  27. Jim Kimmons says:

    So, is everybody trying to catch and sacrifice this guy missing the point? They keep saying that he has alerted the "terrorists" and enemies of the U.S. to this very useful tool to monitor what they're doing.

    So, now they're going to find ANOTHER Internet? They're going to find ANOTHER phone system? Tell them anything you want, as they either stop communicating or use the methods by which they can be monitored. The point is that the lazy government should stop trying to spy on EVERYBODY because they're too lazy to build the information necessary for a valid warrant to monitor personal communications.

  28. Matthew Cline says:

    Note that the second and third charges both require the feds to prove that Snowden's release of information to the press was harmful to the United States.

    Regarding the spying within the U.S., could they (successfully) argue releasing that information was harmful to the economy because foreign businesses might be reluctant to open up offices here for fear of being spied upon? Or that it's harmful to the U.S.'s international reputation?

  29. Ken Prescott says:

    David, if the NSA's mass-trawl through everyone's phone records worked as advertised, the Fort Hood shooter, the Times Square Bomber, and the Boston Marathon bombers would have been caught long before they actually attempted to commit their acts.

  30. David says:

    @Ken Prescott, I can't think of any good reason to suppose that you're right about that. It's quite possible that it works in the way declassified information suggests that it works, and that these perpetrators would still not have been caught.

    This is so because the system's "working as advertised" (even if a necessary condition) is not a sufficient condition of catching perpetrators "long before they actually attempted" illegal acts.

    In other words, catching in time requires a working system plus enough other stuff to ensure preemption. Whatever that other stuff may be, the conditions it imposes were evidently not satisfied in those cases.

  31. Xenocles says:

    @Matthew Cline-

    By law, information cannot be classified solely to prevent national embarrassment or to cover illegal acts. (See, possibly among others, NYT v. United States (1971), the "Pentagon Papers" case.) There has to be an additional national defense aspect to the information beyond the claim of harm from loss of credibility.

  32. James Pollock says:

    Snowden allowed the American public to know what their government is doing to them, but also lets "the bad guys" know the extent of the NSA's monitoring, as well.
    "What "bad guys"?"

    Read the whole post, where you'll find
    (terrorist organizations and hostile foreign governments, and to a lesser extent, friendly foreign governments.)

    "The only people these clowns have stopped was the "elect Romney for President" crowd."
    Stopping people isn't in the NSA's mandate. Surveilling telecommunications is.

  33. David says:

    @Jim Kimmons

    The point is that the lazy government should stop trying to spy on EVERYBODY because they're too lazy to build the information necessary for a valid warrant to monitor personal communications.

    You assert (perhaps in jest) that laziness is a key factor here. But laziness isn't the point of being comprehensive rather than selective. Graph-based discovery and analytics are the point of being comprehensive.

    Indeed, in the context of foreign and foreign-domestic surveillance, being selective is viciously circular.

  34. Vicki says:

    The "released to hostile governments" argument requires that it harms the interests of the United States for foreign governments to know that the NSA is spying on U.S. citizens. Not the interests of the United States, or the NSA, or the Obama administration (or any previous administration), of the United States.

    I don't see it. If it bothers you that the NSA is tracking your communications, are you suddenly going to decide that your sympathies are with such bastions of free speech as Iran or China, to the extent that you will risk harming the U.S. to aid them? Or even the United Kingdom, whose record is similar, with far more government videocameras in public places.

  35. James Pollock says:

    "So, now they're going to find ANOTHER Internet? They're going to find ANOTHER phone system? Tell them anything you want, as they either stop communicating or use the methods by which they can be monitored"
    Foreign governments have access to other (non-monitored) communication channels, yes.

  36. jdgalt says:

    It seems to me that the Constitution "is" the United States (in the sense that our officials swear a loyalty oath to it where those of other countries would swear to a king/queen). Therefore, a good case can be made that the officials trying to prosecute this case are the ones harming the United States.

    Of course, getting standing to prosecute that case is the hard part.

    Oh, and BTW, the URL of this post on the Popehat RSS feed sent me to a completely different post.

  37. David says:

    @Black Betty

    the bad guys are already fully aware that our government was collecting on them in every possible way. And our government knows it

    The bad guys may have suspected such. Indeed, they'd be unworthy opponents if they didn't at least share in the measure of paranoia commonly found on the domestic front.

    There is, however, a world of difference between (a) suspecting or fearing that X occurs and (b) knowing that X occurs and knowing how.

    Suspecting may modify behavior, but probably will not because people are drawn like moths to shimmering convenience. Knowing and knowing how will certainly modify the behavior of many, if they're motivated to sacrifice convenience and they can discern an alternate path– discernment not possible unless one knows both the that and the how.

  38. James Pollock says:

    "The "released to hostile governments" argument requires that it harms the interests of the United States for foreign governments to know that the NSA is spying on U.S. citizens. Not the interests of the United States, or the NSA, or the Obama administration (or any previous administration), of the United States."
    If you start with the assumption that it is in the interest of the United States to snoop telecommunications for intelligence (a necessary prerequisite to the NSA's mission (and budget), then detailing the methods they use to foreign powers who would prefer not to be snooped is contrary to the interests of the United States to the extent that those foreign powers use the information to circumvent the NSA's monitoring efforts.
    Now, I realize that that fundamental assumption is one you'd dispute, but I think it's probably fairly settled… otherwise, we would have cut the funding from the budget quite some time ago.

  39. David says:

    @jdgalt RSS feed is fine. Look for corruption in your reader.

  40. rhhardin says:

    Snowden released methods to the bad guys. That the good guys got it too isn't material.

  41. MarkH says:

    Why would "enemies of the US" care if the NSA spies on its citizens? My guess is they might be delighted with it. It sheds a great deal of light on hypocrisy.

    But I would think the most offended parties involved are the citizens being spied on despite a decade of denials by the government.

    Had the government done this in a forthright manner, run through congress (pretty much like the entire war on Iraq went through, with plenty of "terrorists!" talk) there wouldn't be much scandal.

    I didn't think there was any secret that the NSA was monitoring communications going out of the US. There isn't much controversy over that part, the controversy is over communications between US citizens, and the corporations who sold them out.

    I think the US government should have to prove that all of this is more than just "political uncomfortable" to the point of absurd retaliations. And, the US is quite comfortable with those, such as the handling of Aaron Schwartz's case, the MegaUpload fiasco in New Zealand, and the government support for multimillion dollar verdicts for sharing of a handful of music.

    Surely there is a more reasonable, rational, and civilized response, that would require input by the citizens.

  42. Jayce says:

    It has been entertaining in a horror movie sort of way watching various members of Congress on the news explain:
    1) they had absolutely no idea any of this was going on but it was necessary for national security
    2) the NSA surveillance programs have the highest scrutiny from Congress
    3) we really must get the discussion back to how horrible a criminal Snowden is and we need to catch and punish him immediately
    4) Its no big deal, since we caught terrorists this way; BTW, we can't give you any information about who we caught or how, but believe us, we caught them, and they were bad, bad people, so its all okay

    None of them seem to notice that 1 and 2 are mutually incompatible. The reasoning behind 3 is, of course, fairly obvious. Number 4 is outright disgusting.

    And they are shocked that nobody trusts them?

  43. Bob Brown says:

    The real problem that'll face Snowden's defense team if he is arrested and prosecuted is that information material to the defense will be unavailable.

    "Classified… because terrorism."

  44. Mr. X says:

    "So a pox on both their parties. I've got no loyalty to either the USG-4.5 NSA shadow government or the illegitimate and unconstitutional USG-4 Progressive Welfare State government. I'd love nothing more than a civil war between the two with tens of thousands of bodies."

    If there is a Civil War 2.0 in this country, you can be sure that Big Government RINO OathBreakers like this guy:

    http://streetwiseprofessor.com/?p=5898

    and Karl Rove and most of the old Dubya crew will defend the DHS forces bravely shooting you and other 'insurrectionists' in the back of the head. Think of it as the unholy neoconservative Lincoln worshipping-DailyKos Commie 'when do I get to join the federal miltia and kill some bitter clingers?' alliance made in Hell. It's Molotov Ribbentropp all over again and you're a Polish officer about to be trucked to Katyn.

  45. Mr. X says:

    Agree that this looks bad for Snowden. He was left with two shitty choices:

    1) Accept his stateless state and surrender since his HK visa was revoked with his passport.

    2) Fly to Ecuador via Russia which has very publically embraced Correa and Assange. Of course, all he needs to do in return for Moscow's generosity is let the guys in suits at Sheremetyevo scan all the contents of his laptops [TSA once took mine aside and scanned it real quick when I was flying to Russia, even though I've never had any clearance or worked for fedgov]. No biggie right? I just pray for Snowden's sake he didn't have anything on there about NSA spying on Russia beyond the publically revealed Medvedev fracas at the G-8. But doubtless there's more to those files than the Guardian has published so now even if a federal jury can nullify all the previous counts he's nailed on the last few as mentioned above.

    Option 3, get to the last bastions of the free world like Iceland or Switzerland by way of Mainland China and Mongolia or one of the Stans', was never realistic. As a roundeye he stood no chance of trying to pull a Jason Bourne and disappear onto the Mainland.

  46. Mr. X says:

    Anyway even if Snowden makes it to Ecuador I wouldn't put it past this regime to kill him with a drone strike in South America…and all the a-hole RINOs and DINOs will cheer his death.

  47. A Lurker says:

    The problem is that We the People don't know anything like the full story.

    Specifically, we don't know what information he copied. Obviously we know what has been released for public consumption but we have no idea about what still under wraps.

    Initially, we found about the collection of domestic call meta-data and foreign call intercepts. This has sent many into a veritable volcano-like eruption of anti-government hate. Personally I feel it's more like the situation when Captain Renault said in Casablanca that "I am shocked, shocked to find that gambling is going on in [this establishment]." The government has had the capability to track calls and listen in for at least 60 years, if they feel the need.

    Then we hear from Mr. Snowden that the NSA has offensive hacking capabilities. He specifically mentioned China and released this information just before Obama met with the Chinese president. I would be very unhappy if the USA had not been developing this capability – it's no different than arming yourself in case of war. You can't start developing the weapons when war is declared. In fact, it may already have been declared.

    Next we hear from Mr. Snowden that the UK has similar, and possibly more intrusive, data gathering capability. He released this information at the start of the G8 talks and it appears to have been aimed at disrupting relationships at these talks. Again, this isn't exactly news – all governments who have the capability to spy are surely using it.

    The point is that Mr. Snowden is releasing his information slowly and at points where he thinks it will cause maximum embarrassment to his targets, and his targets are not restricted to the US government.

    He says he is motivated by a love of his country. However his actions do not appear to support his words. As far as I'm aware, Mr. Snowden is not a constitutional lawyer and even if he is, he doesn't have the authority to declare that the laws used to enact the data collection are unconstitutional. It is disquieting that a 29 year-old with no formal legal training has decided he can do so.

    We The People have only seen the tip of the iceberg. We don't know what data was taken, we don't know has been given (or sold) to other governments, and we don't know what he might disclose to other governments.

    We do know the initial charges that Mr. Snowden might face, but we don't know anything else. Making any comments based on what know is pure speculation. Deciding whether he is a hero or a traitorous spy is impossible based on the minuscule information that has been made public to this point in time.

  48. Clark says:

    Mr X

    Rove and most of the old Dubya crew will defend the DHS forces bravely shooting you and other 'insurrectionists' in the back of the head.

    Absolutely agreed. I share more cultural markers with Dubya and Rove and think I'd even enjoy a beer with them… but they are the fascist totalitarian enemy just as much as Obama and Hillary and Emanuel are.

  49. David says:

    @A Lurker, Your reflections seem reasonable. What are you doing in a disreputable joint like this?

  50. David says:

    @Clark, You show limited exposure to, or reflection on, totalitarian fascism. This surprises me, since that's supposedly your shtick.

  51. TerryTowels says:

    With the release of the British information, it suddenly occurs to me that this is probably all moot from the defense-of-liberties point.

    So, the US is not supposed to spy on it's citizens without some form of warrant. But, the British have no such obligation. So they can spy on us as much as they want and then pass all the info onto the US government. And the US can perform the courtesy in reverse for the British.

    Any way you look at it, we're screwed; the revolution is too late.

  52. Rob says:

    Side observation: some folks are intelligent enough to become aware of ideological models and oases of opinion on the fringe, but not quite intelligent enough to recognize, resist, or realistically deconstruct their seductive allure when they're shiny but flawed. The ensuing embrace leaves Procrustean rubble.

    One symptom of this noetic/narcissistic frenzy is a lack of rhetorical self-control and reality-based moderation in characterizing the lives of others and the value of those lives.

    This is why discussions of difficult political and cultural issues so often degenerate into defensive rationalization and offensive reification.

    Isn't that interesting?

    The problem with fluffers of the status quo is that they demand perfection from others while ignoring gaping, massive flaws and systemic abuses perpetrated the current system. Have fun with that.

    @Clark, You show limited exposure to, or reflection on, totalitarian fascism. This surprises me, since that's supposedly your shtick.

    In the past few months, we've revealed that the government uses the IRS to browbeat political opponents and spies on the communications of nearly every single US citizen. And you think this isn't fascism writ large why?

    Not all forms of Fascism resemble Naziism.

  53. mud man says:

    It is to the advantage of the United States, and therefore to the disadvantage of "hostile powers" if the aforesaid US holds the moral high ground, which this sort of debridement is a painful but useful step towards. So Snowden wasn't acting to the disadvantage of the hostiles; certainly not "willfully" so. Case dismissed? Sure.

    …and the "procedural deficiency" with the HK hold request was that NSA has been hacking the Chinese. Also a problem with the Russians. What goes around, comes around.

  54. David says:

    @Rob Not every institutionalized statist tendency is fascism. Not every centrifying organizational bureaucracy is fascistic.

    Reductionistic thinking consists of reasoning with too few categories, just as rationalistic thinking consists of reasoning with too many.

    As for demanding perfection; that's far too high a standard. Simple data-driven rational inferences interpreted with appropriate consistency within a coherent and grounded frame of reference would be good enough. ;)

  55. vb_techie says:

    @Clark,
    Wow…12 posts and under an hour to hit Godwin's law…impressive. Not sure if it's a record, but a stellar showing nonetheless.

  56. AlphaCentauri says:

    I'm still picturing bureaucrats being "hung" from lampposts like coats on hooks, rather than "hanged" like criminals ;)

  57. Xenocles says:

    Speaking as a government bureaucrat I assure you that I'm already hung. [ahem]

  58. Al I. says:

    Yeah, not feeling good about jumping the shark to Godwin in the comments thread…doesn't seem well considered or reasoned thinking from where I sit. It's Clark's blog more than it is my blog, for sure, so I'm not going to beat it to death, but I'd be remiss if I didn't ask — do you kiss your mother with that mouth? That's just over the line, man.

  59. Mike says:

    Thanks Ken, I appreciate it.

  60. barry says:

    Snowdon is charged by the government with stealing information about how much information the government is stealing from people? There's something nutty about that!

    The attitude I find oddest is that people should tolerate losing some privacy rights to reduce the risk of being bombed, but should not tolerate losing some gun rights to reduce the risk of being shot.

    Just by the numbers, these things are way out of balance already.

  61. Piper says:

    @ Clark – I call Godwin's law ;P

  62. Piper says:

    PS, sorry @vb_techie, didn't see that you had beat me to it!

  63. Rocky says:

    In the "for what it's worth" dept. here my opinion on this:
    The truth about the Obama administration is that they are using the IRS to spy on American citizens. The truth is they are covering up their debacle in Libya, also using government funds to help campaign contributors from 2008 and probably 2012 as well. This is just the tip of the iceberg and Snowden knew at least part of what was going on. He is now a man without a country and no doubt has a price on his head. The real question is this. Is it a crime to expose a crime ? If so what are WE going to do about it ?

  64. AlphaCentauri says:

    Godwin's law means invoking the Third Reich to attack your opponent's position. But I'm not sure which position Clark is taking.

  65. David says:

    @AlphaCentauri — From parts indiscernible, he pulled out "you know who else had bureaucrats? H1tlerrrrr!" From an anarcho-Catholic perspective, that may not even count as hyperbole!

  66. AlphaCentauri says:

    Hey, I was raised Catholic. The Catholic Church has a lot to be proud of, with two millenia of people who have given up the luxuries and diversions of live to devote themselves to serving God and God's people on earth, seeing every individual person as a child of God and a temple of the Holy Spirit, serving even people who aren't Catholic and don't intend to become Catholic, even people whose misfortune is entirely of their own making.

    It also has the most legalistic, bureaucratic, financially-bloated, brass-heavy, corruption-sheltering structure of any religion on the planet.

    How it attracted Clark is beyond my reckoning …

  67. Troutwaxer says:

    My take on the matter is that Snowden is most likely an agent being run by another country who has the real goods and is parading them in public. (Other explanations break down when you ask why the heck he would flee to Hong Kong of all places?)

    Either way, I'm pissed as hell that my rights are being violated, because one thing is very, very obvious; Snowden does have the real goods!

  68. Doctor Railgun says:

    "In the past few months, we've revealed that the government uses the IRS to browbeat political opponents " – Robb, that's not what the IRS did and you know it. No organizations were defunded (like ACORN was, for nothing!) or disbanded or anything of the sort. What happened was that organizations which have had problems with following the law (such as religious organizations that feel a need to endorse candidates from the pulpit) had a second look. And frankly, why do Tea Party groups want the American taxpayers to help fund their organizations anyway? (by giving them a tax break)

    I'm not exactly sure why the NSA needs to be secret. It's clear that the United States has no intention of keeping to international law – we do what we want (sadly). So why pretend that we're not spying on anyone and everyone. I would respect politicians a lot more if they would just tell the truth. For instance: invading Iraq and Afghanistan – "Look, we know this isn't popular, but we need to get rid of this Cold War equipment so we can stimulate the economy by buying new vehicles! Plus, we'll get to build all these bridges and stuff. I mean, I realize none of YOU peons will see any of these dollars, but it costs a lot to lobby Congress and we have to make our friends happy."

  69. Kevin says:

    @Troutwaxer – You're way overthinking the Hong Kong connection… Snowden chose HK because he speaks cantonese and is a fan of kung fu movies…. there isn't much more to it than that. If he was some kind of chinese double agent, they probably wouldn't have kicked him out, after all.

  70. dw says:

    Don't extradition agreements always require that the conduct must be an offense in both the extraditing and the requesting state?

    The offenses charged all relate specifically to the United States government. I assume that Hong Kong has no law prohibiting disclosure of information that might damage the US government.

    Given this, couldn't Snowden challenge his extradition on these grounds?

  71. Alphonse says:

    @doctor railgun- not taking is giving! Love it.

  72. Piper says:

    You all missed the worst part of Clark's statement – he would have hung a founding member of Popehat (maybe more, as Ken has pointed out in his writings upon Prenda, that all the lawyers are officers of the Court…). Popehat fight!

  73. Anony Mouse says:

    Put down the Kool Aid, Dr. Railgun.

  74. TMLutas says:

    I thought that this information was gathered but could not be accessed without a warrant. If the government has to have a warrant to access the information, how can it be said to be their information?

  75. grouch says:

    Let me see if I have this weird plot straight… A bunch of people claiming to work to defend the citizens of the U.S. and their Constitution (many took vows to that effect) actually worked to subvert the Constitution, ergo, turned traitor, and now claim that the patriot who revealed their spying is a spy, traitor and criminal?

    Welcome to the Union of Sovietized America, land of the KGB and home of the slave.

  76. NoOne says:

    Looks like Snowden just pranked a dozen or so journalists. They're all stuck on a 12 hour flight to Havana, without alcohol, and he's not on board.

  77. Jeremiah says:

    Congress is BETRAYING the American People far more then Snowden, or even the "Terrorists", ever could.

  78. AlphaCentauri says:

    My understanding is that a judge gave them an overly broad warrant to do it in a court set up for hearing cases involving classified information. Verizon and Google would not have allowed them without some type of warrant. And the Patriot act prevented their fighting it or even revealing it.

  79. markm says:

    @TMLutas: Who is ensuring that the information is not accessed without a warrant?

  80. GalosGann says:

    "99% of which are just bureaucrats trying to do a difficult job."

    You know what's really difficult? Refusing to facilitate misconduct and abuses when asked, and reporting them so that the people responsible are punished. You know what's not difficult at all? Helping them and pretending that you have no choice. Quisling was a good word for people like that. We should bring it back.

  81. David Aubke says:

    @Clark,
    It's "hanged", not "hung". When you use a rope around the neck to murder someone who disagrees with you, it's "hanged".

  82. azazel1024 says:

    Also know what…most of them are still bureaucrats trying to do their job and most actually want to help people. In most cases there isn't miscounduct or abuses going on, so in most cases there aren't people "just doing their job and pretending they don't have a choice".

    Oh sure, undoubtly there IS some of that…but it also makes up a pretty tiny number.

    So again…likely 99% of which are just bureaucrats trying to do a difficult job…who take the heat for the 1% and for the elected parts of the gov't who screw stuff up (other than the American people, who do you think gets stuck holding the bag when Leg/Ex/Jud screw stuff up? The civil service and the armed forces and they usually get stuck holding the bag first)

  83. jackn says:

    As far as I'm aware, Mr. Snowden is not a constitutional lawyer and even if he is, he doesn't have the authority to declare that the laws used to enact the data collection are unconstitutional. It is disquieting that a 29 year-old with no formal legal training has decided he can do so.

    Your awareness might be hampered by your arrogance.

  84. Jim Tyre says:

    Where's Eddie?

    A bit of Monday morning humor, at least to me.

    http://www.guardian.co.uk/world/gallery/2013/jun/24/wheres-edward-snowden-in-pictures

  85. Paul E. "Marbux" Merrell, J.D. says:

    Re: Intellectual Property and Count 1. By statute, federal documents cannot be copyrighted. So one has to find "value" outside copyright to fill the "thing of value" element of Count 1.

    As one who has followed the disclosures of NSA whistleblowers for many years, there's not a huge surprise in Snowden's disclosures. Most of the information has been out there for a long time. The main difference I perceive is between prior verbal statements by other whistleblowers and the far more persuasive proof of internal NSA documents leaked by Snowden that tend to foreclose intelligence agency denials and minimize other damage control responses.

  86. NI says:

    OK, I'll be the minority opinion: If all Snowden had done was to disclose domestic spying by the US government against its own citizens, I might have some sympathy for him. But that's not what he did.

    He also exposed our spying on China, and we ought to be spying on China. It's appropriate and necessary and proper for our spy agencies to be snooping on foreign governments that have demonstrated a williness to harm our economy as has China. And his timing was deliberately calculated to cause the most embarrassment possible to the US just as our president was meeting with the Chinese. So, regardless of whether he's a hero or a traitor on the domestic spying stuff, I'd give him 30 years for the Russian and Chinese disclosures.

  87. Tim McNeil says:

    This may well be off-topic but I'll risk it. What is it with the fascination on "our enemies" by seemingly all of us? Of course I realize that there are a handful of loonies out there that would like make some weird statement in some weird way but we will always have little bit of that. Cancer and heart disease claimed over 1 million U.S. lives in 2010, the most recent available data. Aren't they the more important enemy?

    Is it just an ingrained American trait to want to play cowboys and indians with people, segregate everyone as to whitehat/blackhats? Or does a large part of our economy depend upon the continuation of the defense industry to keep the wheels greased and the jobs flowing?

    Maybe it's time we seriously considered the detrimental effects of this attitude of finding enemies under every bush or rock and then screwing up their lives as bad as we can. The world is quickly getting much smaller and we must be tolerant of those around us. Would a more reconciliatory stance towards others really be that detrimental in the long run? Maybe it's time for a group hug.

  88. Honest Ahab says:

    @Godwin’s Law . . .

    Godwin’s Law may be true but today, my fellow Americans, I embellish it with a necessary and provable corollary – Hogan’s Corollary: We inevitably and instinctively turn to Nazis and fascism for one reason, and one reason only – Nazis and fascists are as FUNNY as hell . . .

    The proof for this assertion?? EXHIBIT A: Hogan’s Heroes, an American television sitcom (get it? situation comedy) that ran for 168 episodes from September 17, 1965, to March 28, 1971, on the CBS network . . .

    So the next time you laugh or cringe at an internet commenter obeying Godwin’s Law, know with certainty that he or she is laughing at you, not with you . . .

  89. Jonathan says:

    http://www.scmp.com/news/hong-kong/article/1268209/exclusive-snowden-sought-booz-allen-job-gather-evidence-nsa

    This doesn't change the equation of whether government snooping is right or wrong, but it does continue the developing narrative of Snowden coming off as something of a narcissist. I feel my opinion swaying in the wind.

  90. Ann says:

    I'm just thinking that he and Assange could form some kind of Ecuadorian resort for political whistleblowers–if Assange ever got to Ecuador itself, of course.

  91. Troutwaxer says:

    Tim McNeil wrote:

    Cancer and heart disease claimed over 1 million U.S. lives in 2010, the most recent available data."

    Tim, I've been asking the same questions for a long time. Here's my version:

    I think it's necessary to consider the actual damage done by terrorism versus the efforts we make to contain it. If you take all the terror incidents in the US over the last twenty years, you end up with slightly over 3000. That's a little more than 150 deaths by terror a year.

    Contrast that to the 400,000 people a year who die by heart attack (for which I'm not required to give up my civil liberties) or the 70,000 people every year who die of diseases they picked up while in the hospital (for whom I'm not required to give up my civil liberties) or the 45,000 people who die every year due to a car accident (for whom I'm not required to give up my civil liberties) or the 25,000 people a year who die by gun violence (for whom I'm not required to give up my civil liberties) or the 7000 people who die every year because they've purchased the wrong over-the-counter pain medication (for whom I'm not required to give up my civil liberties) and you see just how big and well-propagandized the screw job actually is.

    So you're 45 times as likely to die because you bought the wrong kind of aspirin than because you were killed by a terrorist. Or to put it another way, 2,500,000 people die in America each year. That means your chances of dying by terror are about 1 in 16,000. In other words, it ain't gonna happen.

    (BTW, I've been posting various versions of this post for the past eight years, and I'm very proud of it. People (not Tim) have occasionally plagiarized various versions – with enough alterations that I never could absolutely prove anything. So for anyone who wishes to publish something like this letter anyplace, whether as a blog post or a comment, or who wishes to do their own research and expand it. I'm officially setting it in the public domain.)

  92. Castaigne says:

    @Clark: I'd love nothing more than a civil war between the two with tens of thousands of bodies."

    Are you sure about that? You want to think about that a bit more. You would be but a soldier in the Civil War – and no, you couldn't escape it, because everyone would be a soldier. Everyone would be forced to choose a side, either the Statist Liberals or the Patriotic Conservatives. There would be no other choices.

    So here I am, a Patriotic Conservative Commander with you in my command. And I give you a list, Lieutenant Clark, and tell you to take a squad and round up every registered Democrat and execute them. Would you demure? Keep in mind that Liberalism is Treason, treason is punishable by death, all Democrats are liberals, therefore they have all committed treason – and so we can skip trial and proceed straight to sentencing and execution, as per wartime rules.

    As long as you are willing to execute those commands, I salute you. Your civil war would go fine. But if you would disagree with those orders…well, keep in mind that conservatism cannot fail; it can only BE failed, and to save liberals is to agree with liberalism which is to disagree with conservatism which is treason against liberty and freedom.

    Things to think about, certainly. Commitment to civil war in this day and age requires the utter extermination of the enemy. We would need to look at the methods of Robespierre to start, and move forward from there.

    @Lee Reynolds: "The United States of America has no legitimate government at the national level. State level governments are often corrupt, but not often truly illegitimate. Counties and cities and generally have legitimate governments. Our nation as a whole however, does not."

    Please explain your legal reasoning behind this. This sounds very much like the whole tax protester "The United States government is a corporation operating under maritime law" theory.

  93. Kevin says:

    @Troutwaxer: +1

    @Castaigne: I think the civil war Clark was proposing was not between liberals and conservatives but rather between the Progressive establishment (inner party in Moldbuggian terms) and the Intelligence Industrial Complex.

    I'm not sure how realistic it would be for such a conflict to remain confined to those two factions and not spill over into the replublocrat/democritan masses and end up much like you describe it, which is why I'm not as enthusiastic about the possibility as Clark seems (claims?) to be, I'm just trying to explain what I see as his position.

  94. Robert White says:

    Theft doesn't work because it lacks conversion. He copied the records but never deprived the the the government et. al. of the originals. He didn't "convert" (or deprive) anything.

    This is, at its core, the same thing as people trying to say copyright violation is theft when it is, in fact, just copying. Copying without authorization is it's own thing, and not theft.

    The law is not improved when it is misapplied.

  95. TMLutas says:

    @markm Funny enough, that was part of Edward Snowden's job as a system administrator.

    @A Lurker Every day sysadmins are confronted with legal issues. Few of us have legal training yet we still have to worry about it and we generally have little access to lawyers to help with our interpretation. It's rare that we're asked to commit crimes but it does occur.

  96. Anonymous says:

    What I'm trying to figure out is when the NSA went so far astray.

    If you've ever read Cliff Stoll's "The Cuckoo's Egg" (http://www.amazon.com/The-Cuckoos-Egg-Tracking-Espionage/dp/1416507787), the NSA was adamant about not spying on US domestic communications, even when the other end could be shown to be foreign, and most likely hostile.

  97. James Pollock says:

    "the NSA was adamant about not spying on US domestic communications, even when the other end could be shown to be foreign, and most likely hostile."

    No, they CLAIMED they were not interested in spying on US domestic communications. Don't know if you know this, but sometimes what they do and what they say they do (where "they" are intelligence-gathering agencies) are not identical.

  98. James Pollock says:

    "Theft doesn't work because it lacks conversion"
    This would be true if theft required conversion, but it does not. Neither theft of services nor theft of trade secrets require conversion, but each remains theft nonetheless.

  99. Anony Mouse says:

    What I'm trying to figure out is when the NSA went so far astray.

    The NSA doesn't have a brain; it isn't a living thing with morals. What the NSA will and won't do is a matter of who is in charge of the agency. The people in charge in 2005 aren't in charge any more.

  100. Robert White says:

    Yes, but the law cited above in the main article, (to my reading) requires conversion.

    e.g. (5) the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his own use;

  101. A Lurker says:

    @ TMLucas Every time I leave the house I'm confronted by legal issues also; whether to speed, whether to drive recklessly, whether to steal from shops, etc. These issues (like yours) just aren't in the same league as the legal decisions taken by Mr. Snowden.

  102. jackn says:

    Theft doesn't work because it lacks conversion"
    This would be true if theft required conversion, but it does not. Neither theft of services nor theft of trade secrets require conversion, but each remains theft nonetheless.

    Yes, theft is often used this way in a colloquial manner.

    Neither theft of services nor theft of trade secrets require conversion, but each remains theft nonetheless.

    Technically, each is not theft, but OK for watercooler talk.

  103. wumpus says:

    @Clark: We, the people, are those hostile powers.

    I visited the NSA "national cryptologic museum" before 9/11 (it looks like that was only a window of a few years) and that distinct impression was true even then (but then again, I was aware of the Clipper chip and other attempts to maintain wholesale domestic surveillance).

    The other thing to remember is that "we the people" supposedly have to sign off on the NSA's budget. To the appointees and GS15s, maintaining and growing a department's budget is always the most important mission in any government agency. Enlarging turf is a close second. There is no third (and any "official mission" is way down the list).

  104. Jim Tyre says:

    @wumpus

    I visited the NSA "national cryptologic museum" before 9/11 (it looks like that was only a window of a few years)

    It still exists and it is very cool.

    A little known fact is that all the three letter agencies, including NSA, do annual holiday season ornaments. Considering that I've been litigating various NSA domestic spying cases since 2006, it might seem odd that I'm in the habit of collecting the NSA annual offerings. (I don't care about the other three-letters.) My steeped-in-irony favorite is the 2007 ornament.

    http://jstyre.com/misc/NSA_2007.jpg

  105. James Pollock says:

    "Yes, but the law cited above in the main article, (to my reading) requires conversion. e.g. (5) the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his own use"

    The key word there is "or".

  106. Robert Q says:

    @Robert White @James Pollock

    This was exactly the thought I had when I first read it (see comment above). I suppose we could debate the meaning of "appropriate", but I will point out that Merriam Webster's first definition of "appropriate" is "to take exclusive possession of". The other definition is "to take or make use of without authority or right", which I guess if you just read "make use of", could theoretically mean a lack of deprivation (or conversion, to use the more legalese term).

    But regardless, I second Robert White's comment – the law in Canada is fairly well-established. You can't be criminally convicted of "theft" of information or trade secrets if the "victim" still has the information.

  107. James Pollock says:

    "I second Robert White's comment – the law in Canada is fairly well-established. You can't be criminally convicted of "theft" of information or trade secrets if the "victim" still has the information."

    Well, this is the United States, and here you can be guilty of misappropriation of trade secrets if the victim still has the information.
    18 USC 1832.

  108. Bill says:

    Every time I read something from @Clark, I like him even more

  109. Bill says:

    @Anonymous – Cuckoos Egg was written in 1989 – that was before even the Great Wall let alone DHS consolidation. I think the consolidation of information systems was inevitable. Back then, the relational model predominated the database world (I guess it still does but the times they are a changin') which injected an implementation hurdle in linking all of the data together. You had to do data dumps or ETL's to get the data around and govt incompetence coupled with procedural hurdles and turf wars were natural buffers. Well, the NSA unlike other agencies isn't staffed with incompetent dolts and underachievers, technology has changed to make consolidation pretty much easier to do than not to do and computer based communication necessarily leaves a lot of footprints – all of that combined to make this inevitable. Even if the NSA didn't do it (I'm not justifying it) the govt would just do what they do and demand it from private sector companies and get political enemy dossiers the old fashioned way. I do believe the NSA went out of it's way (from what I've read) to filter out much more than it would seem consistent with what you read in teh Cuckoos Egg. I certainly don't like it and don't support it, but I'm still way more worried about DEA/ICE/FBI agents kicking in my door baed on a bad warrant, and shooting my dogs then me and/or my family than anything the NSA will do. And all else being equal, i'd rather have my rights violated by a nerdy type with a Math/Comp Sci Phd from MIT or Carnegie Mellon than a steroid freak with body armor and a Sig. The sad truth was, as larry ellison said like 15 years ago, privacy is dead – it was dead then , it's already decomposed and rotted and serving as food for new creatures by now. The only answer I see is a Turnabout is fair play approach – give us access to everything the govt keeps – If we can't keep secrets from them, they shouldn't be able to keep them from us. Besides, they do much more odious stuff they don't want disclosed than most of the citizenry – making them honor FIOA requests, refusing to tolerate all the "oops, we lost it" and "it's national security related" excuses would fix the problem overnight.

  110. MediocreMan says:

    So many crazies in this thread. I don't see PRISM as a big deal (ya'll should read up on what the FBI was up to in it's heyday; the only reason that the Watergate incident went down was that Nixon had to organize his own team of creeps because Hoover was having nothing of it). Furthermore, Snowden stole government property, did so with intent to infiltrate and disseminate information, and has shown that he's more than willing to give any country that data-mine in order to escape the consequences of his actions. He's far from a hero.

  111. Paris S says:

    As far as that nonsense about having to prove to the courts that there was harm, the courts will of course, recognizing the balance of powers, ask the executive branch if it harms the interests of the United States. If the agencies whose job it is to handle National Security say it harms us, it harms us.

  112. Robert Q says:

    @James Pollock

    Thanks for the legislation citation. As you could tell, my knowledge of US law is limited/non-existent, so I appreciate the correction.

    Still seems odd, that you can be criminally charged with exposing someone's trade secret. By my reading, doesn't that make exposing, say, the KFC recipe or Coke formula a criminal offense? Similarly, "receiving" or "possessing" said secret knowing it to have been copied without authorization is also a criminal offense? Yikes. Has/could such a section been used against journalists?

    Of course, it gets even better if you happen to divulge that trade secret to a foreign government, then you get charged with economic espionage (18 USC 1831). I'm sure lots of countries would love to know how Caramilk gets the caramel into their bars. :)

  113. James Pollock says:

    "doesn't that make exposing, say, the KFC recipe or Coke formula a criminal offense?"
    Depends on how you got it. If you were authorized to have it, and disclose it, that's a civil matter covered by the Uniform Trade Secrets Act.

  114. Avoiding light poles says:

    One aspect that I've not heard discussed is the effect of increased use of contractors performing work that some would argue is easier to keep a lid on if it's done by government employees. There's enough distaste for anything government at Popehat that I expect reducing the number of people employed by the government is a good thing (although many would take issue with the government doing anything regardless of whether the worker is an employee or contractor) in all cases. So will actions such as this by Mr. Snowden have an impact on the amount of and type of work done by people that are, say, not in active or reserve military service, and could be dealt with differently than someone that is not such as Mr. Snowden, should they decide that their life will be better by spending the rest of it on the lam as he apparently has?

  115. James Pollock says:

    That's why they do background checks before granting security clearances. They turn up the people who are of a personality to expose secrets, or have financial situations that might make attempting to sell them attractive. It can take over a year to complete the background check for the highest security levels (contractors are usually people who already have a security clearance)

  116. zaq.hack says:

    (1) Snowden wants to stay alive, so it may appear he's giving access to US secrets … but there are zero ways to prove whether he did or did not. I doubt he means the US harm for the simple fact that he likely had access to much, much more and released a very limited amount. I am not a mind reader, but this seems consistent.

    (2) During the Cold War, the number of defectors and seekers of political asylum was a sort of "proof of evil" by the USSR. What does it say about the USA that now we have a rash of "whistleblowers"? If you have a whistleblower problem, maybe your country could, I dunno, stop doing the evil things that compel people to risk everything and become a whistleblower? And is our treatment of them so different than how the USSR felt about their defectors? Put aside your tribal instincts for a second and examine this from a more objective place. Spying on everyone is objectively evil.

    (3) This is not a giant conspiracy. People have volunteered data to Facebook: Who their friends are, who they associate with, where they eat, their political views, etc. And yet, even with this data available, we were unable to prevent two Facebook users from bombing the Boston Marathon. Don't give me that, "If you have nothing to hide" line of crap! These systems are all about ex post facto: Mining evidence after the fact to bolster circumstancial claims about the guilt of a subject. It does not and CANNOT keep you safe.

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