THE BLOG
06/11/2013 06:18 pm ET Updated Aug 11, 2013

Dimming the Light With the Espionage Act

Edward J. Snowden may go down in history as the man who redefines the legacy of Barack Obama. His leak of the National Security Agency's expansive domestic surveillance programs, as well as his new life as a fugitive, has dominated public and private discussions across the country and beyond. An enemy to some and a national hero to others, Mr. Snowden will almost certainly face charges under the Espionage Act for his disclosure. Yet, prosecuting Mr. Snowden would further undermine the 44th President's promise of transparency, taint his commitment to civil liberties, and add fear to his message of hope.

Enacted in 1917 to deter domestic German spies' subversion efforts, the Espionage Act has been very infrequently used to punish unauthorized disclosure of classified information to the media. In fact, only three such cases were brought between 1917 and 2008. Yet, in less than six years, the Obama administration has prosecuted six media leak cases, breathing new life into a dated World War I legislation and using it to hide defense programs potentially objectionable to the American public.

If rendered and put on trial, Mr. Snowden's conviction is all but certain. Based on the Espionage Act's plain language, Mr. Snowden's disclosure of classified national security programs is criminal. But so is every republication, every tweet, every blog, and every private discussion about the information leaked. The Espionage Act criminalizes all unauthorized receipt and transmissions of classified material, with no exception for secondary retransmissions. Those in haste of calling for Mr. Snowden's prosecution should consider how the overly broad law may criminalize their participation in this discussion.

Aside from the potential abuse inherent with selective enforcement, the Espionage Act was not intended to prevent leaks without malicious intention, such as Mr. Snowden's. The Act's purpose was to stop the then-real threats of subversion, German sabotage, and draft avoidance as the nation entered World War I. It was not meant to stifle all good-faith criticism of national security programs. An unauthorized disclosure is not an espionage, or a sabotage, or a subversion, simply because it concerns national security. Intention and motivation matter. If Mr. Snowden's security breach was truly motivated by his professed concern for democracy and constitutional rights, the government should not pursue him with tools meant for spies and traitors. Senator Dianne Feinstein was wrong; a citizen's effort to defend constitutional rights, however misguided, cannot be treasonous.

Not only well intended, but part of the information leaked by Mr. Snowden is in fact of paramount public interest. Diplomatic cables and drone strike targets are newsworthy, but only to a very small segment of the general public. On the other hand, as alleged by Mr. Snowden and corroborated by other sources, the government's sweeping data mining and domestic surveillance programs have a direct impact on almost all Americans, effectively redefining our expectation of privacy. From the perspective of the average citizen, no other leak in recent US history comes close in terms of the magnitude and importance of the information divulged.

Judged by public furor across the political aisles following the leak, the American people apparently do not want their government to change their constitutional rights in secrecy. Especially not a government that purports to be a champion for transparency and civil liberties. Mr. Snowden was not unreasonable, or alone, in having grave concerns over secretive exercises of unprecedented governmental power. That the American public now know enough to have vigorous debates over the legitimacy of these programs is a testament to the social value of Mr. Snowden's disclosures. Mr. Snowden might have compromised our national security, but he did so to promote an overarching national interest. His prosecution under the Espionage Act would be an abuse of the Act's purpose and prosecutorial discretion.

Mr. Snowden broke the law and breached his oath of confidentiality. But in this circus, NSA officers also broke the law by lying to Congress under oath, while elected officials repeatedly misled the American people, about the scope of domestic intelligence. In its effort to discourage leakage of classified information, the government must consider both deterrence and fairness. The Espionage Act is not an appropriate tool in cases such as this. Mr. Snowden is not an enemy of the state.

Overzealous prioritization of national security had led to some disastrous policies in our history, including a short-lived amendment to the Espionage Act, known as the Sedition Act of 1918. Responsive to the government's growing paranoia in a time of war, the Sedition Act criminalizes the use of "disloyal, profane, scurrilous, or abusive language about the United States government, its flag, or its armed forces." Together with the Espionage Act, it was an important tool for the government during an ugly period of civil liberty suppression in the name of national security. The Sedition Act's crowning achievements include the birth of the ACLU and the 20-year conviction of a woman named Rose Pastor Stokes for publicly saying: "I am for the people, while the government is for the profiteers." Had the Sedition Act not been repealed in 1920, the Tea Party would have a lot more to worry about than IRS investigations.

Attending President Obama's first inauguration remains one of my fondest memories. On that cold January morning, Mr. Obama said to a raptured crowd: "As for our common defense, we reject as false the choice between our safety and our ideals. . . . Those ideals still light the world, and we will not give them up for expedience's sake." Indeed, American ideals such as privacy and free speech, and standing up for what you believe in, still light the world. And right now, those ideals are embodied in a young man on the run somewhere in Asia.

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