In an article in today’s Guardian by Jonathan Kalman, he quotes a commentary in China’s official state paper, the People’s Daily:
“In a sense, the United States has gone from a ‘model of human rights’ to ‘an eavesdropper on personal privacy’, the ‘manipulator’ of the centralised power over the international internet, and the mad ‘invader’ of other countries’ networks,” the People’s Daily said.
The White House said allowing Snowden to leave was “a deliberate choice by the government to release a fugitive despite a valid arrest warrant, and that decision unquestionably has a negative impact on the US-China relationship”.
Like many people, I’ve been following the developments in the case of whistleblower Edward Snowden. And sad to say, I think I actually agree with the People’s Daily in that sentiment. But apart from the major issues raised by Snowden’s blowing the whistle on surveillance programs that we, the people, were mostly in the dark about, there have been other issues and questions raised, including whether our government has been blaming Hong Kong and others for its own failure to follow the rule of law. I have three additional questions that haven’t been subjected to serious media scrutiny yet, including the White House’s claim that there was a “valid arrest warrant” submitted to Hong Kong.
What did the government provide to Hong Kong, and when?
Our government seemed pretty confident that Hong Kong would turn Snowden over to us. But as some news outlets noted immediately, the complaint against Snowden, unsealed last Friday, included charges under 18 USC 793(d) and 18 USC 798(a). Had the government just charged him with theft, the issue of a political charge might not have become a potential obstacle. But there may have been a second obstacle, not reported in the news sources I read: Hong Kong’s extradition treaty with the U.S. requires the production of a valid arrest warrant (Article 8(3)), and the government may not have had one at the time they made the request of Hong Kong, although Article 10 does provide for a “provisional arrest warrant.” Is it possible that Hong Kong didn’t comply because the U.S. did not have its papers in order? Yes, there were political reasons for Hong Kong and China not to comply, but there may have also been a valid legal reason. (UPDATE 1: the papers reportedly used Snowden’s middle initial but did not spell out his full name – was this the reason??)
There is no docket for any case against Snowden that I can find in PACER as of this morning.
Did DOJ violate its own policy in charging Snowden?
As I noticed last week and others have also pointed out, the government’s policy is not to charge whistleblowers under 18 USC 641. From the Criminal Resource Manual:
Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.
There are two reasons for the policy. First, it protects “whistle-blowers.” Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.
The Criminal Division does not intend, in promulgating this policy, to prevent or discourage prosecutions under any other applicable statutes, such as those prohibiting the unauthorized dissemination or possession of government information, e.g., 18 U.S.C. §§ 793, 794, 1905, or 50 U.S.C. § 783. Instead, the Division’s purpose is to require that, in the circumstances enumerated above, such cases are prosecuted under these other applicable statutes rather than under 18 U.S.C. § 641.
Yet the criminal complaint against Snowden charges him under 18 USC 641. Why? What appears to be a flagrant policy violation supports the notion that this is a political prosecution or persecution of a whistleblower. Couldn’t that persuade other countries that Snowden really has a legitimate argument in seeking asylum? Shouldn’t it persuade those who seek to demonize Snowden and consciously buy the government’s characterization of him as a “leaker” instead of as a “whistleblower?”
Did the government revoke Snowden’s passport improperly?
The government’s own fact sheet on revocation of a citizen’s passport states:
Valid Federal or State Felony Arrest Warrant
If an offender already has a valid passport, Law Enforcement may specifically request that the State Department revoke a subject’s valid passport on the basis of an active felony arrest warrant, in the manner indicated below. (emphasis added by me)
Later in the fact sheet, it notes that “(sealed warrants must not be provided and cannot be acted upon).”
So we’re back to the question I posed earlier: is there a valid unsealed felony arrest warrant – and did the government have it in hand last week when it asked Hong Kong to extradite and when it asked the Department of State to revoke Snowden’s passport? If all they had was the complaint, State should seemingly have not revoked Snowden’s passport. I’d welcome a statement from DOJ addressing these questions. (UPDATE: I found an answer to this one: In Haig v. Agee, the Supreme Court held that DOS could revoke a passport when there was a matter of national security. So that’s one question/issue resolved for me.
The “Rule of Law”
Yesterday, Politico reported:
President Barack Obama said Monday that his administration is “following all the appropriate legal channels” on securing surveillance program leaker Edward Snowden, whom the White House says it believes is hiding out in Russia.
In brief remarks ahead of a White House meeting with business leaders about immigration, the president said that U.S. officials are working with involved countries to “make sure that rule of law is observed.” His comments came in response to a question about whether he’s spoken with Russian President Vladimir Putin about Snowden’s case.
So… is the rule of law really being observed? Without answers to the questions I posed, I don’t know for sure, but it’s certainly not clear that it is being followed, and a sealed FISC opinion finding some of the government’s programs unconstitutional suggests that it hasn’t always been followed. How much it is being followed now remains an open question in light of the lack of transparency our government has shown.
And for the record, yes, I see Snowden as a whistleblower, and am grateful to him for exposing what our government has kept us in the dark about. Has he embarrassed the government with his disclosures? Undoubtedly. But that’s not necessarily a bad thing, if ultimately, the U.S. government recognizes that it cannot complain about others spying on us when it is engaged in the very same conduct. And ultimately, maybe we’ll get the genuine debate we need about how much privacy we’re willing to sacrifice – with consent – in the name of security.