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"The perceived Constitutionality of the NSA programs is irrelevant."

This is incorrect. If the NSA programs are found to be unconstitutional by the courts, Snowden will have to be regarded as a whistleblower. If he is a whistleblower, then he is not a criminal.

The very problem here is that a good number of us Americans, and a great many more non-Americans, regard secret surveillance as both an affront to the 4th amendment of the US Constitution, and the basic human right to freedom. Secrecy is simply anathema to democracy.

If he gets a jury trial then all of it is irrelevant. He can be acquitted for any reason whatsoever:

http://en.wikipedia.org/wiki/Jury_nullification

Espionage is tried with juries? Source?

What source would you need for that? The 6th Amendment guarantees trial by jury.

Fair enough. I had assumed military trials may be treated differently as Manning's trial didn't have a jury. But it turns out he declined a jury with this reasoning:

> "The answer may be that a tough judge is still a better option than a military jury picked from a pool of serving soldiers that widely considers Manning to be a traitor. "

http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/...

Yes, Manning is being tried under the UCMJ, but would have had a jury available to him there as well. However: Snowden is a civilian. He can't be tried in a military court (absent his joining the armed forces of some organization we're war with).

Right, but there are still some sticky issues surrounding nullification.

"This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy."

See: http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/US... http://caselaw.findlaw.com/us-2nd-circuit/1382192.html

Essentially, while jury nullification does exist and should be upheld it is critical that jurors are aware of it beforehand or may be otherwise informed.

This just doesn't come up in most high profile cases. The government will strike any juror who is a threat to use nullification.

I don't think it's actually true that whistleblower protections in the US effectively sanction any disclosure or leak if what is leaked somehow implicates some crime. I'd welcome a source to back your assertion up, though.

It's an interesting question the criminality of his actions may from a legal standpoint be completely independent of his status as a whistleblower or spy ( and those two categories may not be mutually exclusive either ).

Certainly he has violated his confidentiality agreements ( a civil liability ) and exposed information that is classified ( potentially a criminal liability ).

And it's possible for rational people to think that he may be doing things that are morally justifiable even if criminal. Where most people who think that investigating systematic acts of lawbreaking ( and wholesale collection of private metadata absent criminal suspicion from private companies by __any__ .gov qualifies as such on first examination ), may believe that those who bring such acts to light should be spared punishment because they are acting in defense of the greater good of society.

It is healthy for us to be reminded that our naive moral calculus is only loosely mapped to our system of laws.

Sure. I'm interested pretty exclusively in the legalisms of this situation, not in the moral dimension (which I don't believe I can learn anything about from a message board).

The Federal Whistleblower Act does not cover Snowden. 5 U.S.C. § 2302(b)(8)(A)-(B). For disclosures not made to the Inspector General or Special Counsel

"if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;"

Also www.aclu.org/pdfs/safefree/disavowed_report.pdf‎ (Page 10)

I acknowledge he has no protection under the Whistleblower Act, having read a bit more. But let me pose a hypothetical.

You find a Top Secret folder lying on a park bench, with records of a horrific crime by a respectable cabal of executive, judiciary, and legislative branch members. The president and his staff, a few FISA judges, and some high-placed congressional cronies have conspired to brainwash everyone with a magic potion, and seize total dictatorial control of the US, then the world. They are using the loose oversight of post-9/11 homeland security to get away with it.

So is it a crime to send that proof to Glenn Greenwald? I'd argue that there are theoretically classified documents that it would not be a crime to make public, and all you can say is Snowden's leak doesn't fit the bill.

Yes it would be a crime. The fact that you think it shouldn't or that there are instance where you think it shouldn't doesn't mean it isn't. The statutes are pretty clear.

"Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it"

" Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—"

The law you cite clearly says the information must be "relating to national defense."

In the example I have created, while wildly fantastic and unbelievable, the information does not relate to national defense at all. It is simply a record of a conspiracy committed by powerful people, which was "classified" by those same powerful people.

I was presuming that the justification for any of the actions would be national defense and at least have a tenuous connection to national defense as would be the case in any realistic scenario. It is not hard to come up with one even for your outlandish example.

> I hope he comes home and faces a trial. If he gets an OJ level superstar legal team he has a good chance of being found not guilty. If he loses he's facing around 10 yrs in a lower security prison. The show trial and national debate he'll spark will probably be more than worth it.

Wow, what a terrible and imcompassionate comment. Here's young man who braved it all to give us some factual information about spying. When '1984' scenarios were discussed before this leak, most people shrugged it off as some conspiracy theory or one being unnecessarily cynical. This leak is a big reality check for those people.

Instead of empathizing with Snowden, here you are saying that spending prison time will be 'worth it'. Worth it for whom? The media who can write tons of stories? The US citizens who now got some factual information but put the source in jail anyway?

Snowden _already_ gave up his cushy life for informing the US citizens about this leak. Expecting him to do more speaks more about one's character than anything else.

I am already saddenned that there has been outrage only on the internet but not on the streets in the US. It can only mean one thing - the US people cannot be bothered to leave the comfort of their homes where there is, I am sure, something much more 'entertaining' and 'fun'.

> This is an incredibly high profile case and the Justice Dept doesn't want to win this one by cheating. They take pride in their work as investigators and prosecutors, they will want this case to be nice and fair.

nice joke. Manning would laugh at it if he had any mental or body energy left.

Bradley Manning is being tried by the U.S. military, not the Justice Department.

so, does it mean that you think that this statement about Justice Deartment is not applicable to US military ?

"the Justice Dept doesn't want to win this one by cheating. They take pride in their work as investigators and prosecutors, they will want this case to be nice and fair."

I'm saying you can't use the Bradley Manning case as an example of the bad treatment Snowden would receive from the DoJ, because the DoJ is not responsible for whatever is going on with Bradley Manning. Snowden is a civilian so he would not be tried by the military.

Stephen P. Heyman

Carmen Milagros Ortiz

this is a bit more high-profile I think.

I'd much rather have subversion embarrassing the tyrants from abroad than have a legal/political martyr at home.

I think you should ask some 29 year olds if they'd like that kind of fame. I think the vast majority would say: No Way.

People like you make me really feel ashamed of the human race.