Leakers, Hackers and Security

07/24/2013 03:54 pm ET | Updated Sep 23, 2013

Are PFC Bradley Manning's dumping of US State Department cables to WikiLeaks and Edward Snowden's theft of documents from Booz Allen, where he worked as an systems analyst, and revelations of PRISM through the Guardian both treasonous? Do these acts constitute espionage?

I and many others think not. Their actions were illegal, but they worked for no foreign power or entity. Neither was paid for their actions.

They acted alone, Manning from extreme naïveté and Snowden from a vastly inflated sense of his destiny. WikiLeaks disseminated Manning's data, while Snowden's data went to the Guardian and Washington Post, although he has subsequently been aided by WikiLeaks in his effort to find sanctuary. Neither working for nor being paid by any foreign operatives, these are not treasonous actions (Article 3, Section 3 of the US Constitution).

Espionage is defined in a wider context, particularly due to the 1917 Espionage Act. Neither Manning nor Snowden transferred anything directly to a foreign power or an enemy. The 1917 Act did prohibit "in a time of war" providing information "useful for the enemy." Therein is the greatest legal exposure for Manning and Snowden. Yet, as in Korea, Vietnam, and countless other actions -- all undeclared wars although with a broad congressional stamp of approval -- the utility of Manning's or Snowden's leads for the Taliban or Al-Qaeda (or any regional affiliate) remains to be demonstrated, particularly since the essentials of PRISM were understood widely years ago.

Motives play a central role in legal proceedings, and neither man sought more than to reveal and disseminate what they appear to have thought were excesses and wrongs committed by the American government in the name of a war on terrorism -- a concept that President Obama already has implied has outlived its utility. FISA and some secret congressional briefings aside, Snowden has made explicit the damage done to Americans' constitutional rights to privacy, while Manning's WikiLeaks downloads have enabled us to see into diplomatic "traffic" that reflect on US views of allies and political personalities.

Bradley Manning's and Edward Snowden's self-indictment was the theft of documents that they were by duty or contract bound to keep secret. Yet, the existence of a massive American data-mining effort from electronic communications had been known and even reported about for more than several years -- as long ago as 2005 but with major reportage in the New York Times and elsewhere. And other analysts -- Manning's superiors -- have opined that little he revealed was of intelligence value.

While Top Secret or higher classifications were applied to documents that these two men revealed, truth be told that only the title "PRISM" was unique in Snowden's leaks thus far, and that the documents and data together confirmed that nothing we say on a phone or Skype, or email, or tweet, or send via a social network site is unavailable to NSA, GCHQ (in the UK), or many other countries engaged in the same espionage.

So is it espionage to reveal in a democracy the existence and extent of espionage conducted often against citizens by one's own government - or secret parts of it - particularly if informed reporters, scholars, and analysts had discerned such programs years ago? When did transparency for the sake of egregious wrongs, without any foreign involvement or payment, become espionage?

President Obama rightly said that he wasn't going to scramble jets for a hacker (Snowden). But Mr. Snowden should, indeed, stand trial for stealing U.S. government documents and be judged by a jury for such a lesser charge. Of course, Bradley Manning is already on trial at Ft. Meade, Maryland, not without considerable irony where NSA is primarily based. He will no doubt be convicted on some of the counts with which he has been charged and will serve time in the discomfiting confines of Ft. Leavenworth.

But we demean ourselves and our efforts to ensure security after 9/11 to elevate these kinds of behaviors -- essentially taking and distributing unlawfully to advocacy organizations and journalists the data they had agreed to protect -- to the level of a capital offense or of a venal felony.

And if we are so foolish to think a) that the Russians and Chinese were not fully aware of these programs and probably intercepted our diplomatic cables with regularity and b) that both countries do not have similar if not more robust programs themselves, then they have the last laugh.

These are not the first, nor will they be the last cases of leakers and hackers revealing documents and communications that US Government officials or agencies prefer to keep hidden. Remember Daniel Ellsberg?

There have been many other real, honest-to-god spies (Walker, Ames, and so many others) who sold out the United States, betrayed codes, endangered people -- in fact directly leading to deaths. Manning and Snowden reflect weaknesses in the command structure of the military and the degree to which Beltway contractors now operate vital sinews within the US intelligence establishment with poor oversight.

Punish these two for what they did, not what they did not and could not do - truly threaten American lives or security.

*Daniel N. Nelson heads an international consultancy in Northern Virginia.