I
realize that not many of my readers may be very interested in the
NSA/Snowden affair, or at least not very interested in what I have to
say about it.
But
since this blog is in part for my own education and improvement of
*my* moral character, not to mention *your* moral
character, I think it is my duty to soldier on and educate myself and
my fellow Americans about some of the background and law involved.
The
question of the day is whether or not on paper Glenn Greenwald has
violated American law. Which is different from whether or not he
will be tried for this alleged crimes or, if convicted, those
convictions will stand.
To
recap, when Ed Snowden violated his oath and released information
with the clear result of damaging the United States national
security, he did so with the help of various accomplices around the
world. A few of those accomplices are publicly so, and most of
them are not public.(1)
Foremost
among the public conspirators is Glenn Greenwald, an independent journalist, and author
of several best-selling books. He has been instrumental in
transmitting and publishing this information and very public about
it.
So
here are the questions we want to answer. 1. Is there a law
prohibiting what Greenwald did? 2. Is there a special exemption in
this law for 1st amendment purposes? and 3. If there is a law and
no special exemption, why has the government not issued warrants of
arrest for Greenwald?
The
answer to question 1 is simple: yes. It is Title 18, part I,
Chapter 37.798, Disclosure of Classified Information, and I have
quoted the relevant text below.
The
answer to question 2 is not at all clear. The only way to find out
if a law is constitutional is for someone to be judged, found guilty,
and to appeal. If the law is struck down by an appeals court, it
may still not be clear. The ultimate judgment comes from the Supreme
Court, as imperfect as it may be. Thus all those people who go
around saying "this is unconstitutional" quite probably do
not have a clue what they are talking about. Yes, the 1st
Amendment is pretty clear about "free speech". But it does
not say you can sell stolen goods, nor does it say anywhere that you
can conspire to kill Americans (in an indirect or a direct fashion,
with the differences between those two being very germane to this and
other cases).
Therefore
if there is a law, and there is, and if that law stands and has not
been found unconstitutional, why has the Obama Administration not
filed charged against Glenn Greenwald? Perhaps
they feel that it would stir up more opposition to America in the
world. Perhaps they are afraid of testing the law in the case of a
journalist. Perhaps they are taking a wait and see attitude to see how things develop. I have no doubt the Greenwald must be under intense surveillance.
Is
there a statute of limitations on these alleged crimes? Maybe, but
its also a loose thing and not as black and white as some people
think particularly because of the issue of continuing activities of a
conspiracy, which is certainly the case here. In other words, is
Greenwald still conspiring with Snowden to publish classified
material? Yes? Then the statute of limitation clock has not started
running yet.
So
the answers to our questions are 1. Yes, 2. Unknown you just have to
try it, and 3. Unknown but they still have time should they decide
later to do so.
The relevant federal statute:
TITLE
18 - CRIMES AND CRIMINAL PROCEDURE
PART
I - CRIMES CHAPTER
37 - ESPIONAGE AND CENSORSHIP
§
798. Disclosure of classified information
(a)
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—
(1)
concerning
the nature, preparation, or use of any code, cipher, or cryptographic
system of the
United
States or any foreign government; or
(2)
concerning
the design, construction, use, maintenance, or repair of any device,
apparatus, or
appliance
used or prepared or planned for use by the United States or any
foreign government for
cryptographic
or communication intelligence purposes; or
(3)
concerning
the communication intelligence activities of the United States or any
foreign
government;
or
(4)
obtained
by the processes of communication intelligence from the
communications of any
foreign
government, knowing the same to have been obtained by such processes—
Shall
be fined under this title or imprisoned not more than ten years, or
both.
(b)
As
used in subsection (a) of this section—
The
term “classified information” means information which, at the
time of a violation of this section,
is,
for reasons of national security, specifically designated by a United
States Government Agency for
limited
or restricted dissemination or distribution; ....
You
may find the complete statute here:
A
discussion on statute of limitations can be found here:
Glenn
Greenwald on Wikipedia
_____________________________________________________________
1.
Russian intelligence services aided and abetted Snowden is apparently
the belief of many in the intelligence community. I have heard
various explanations for why they believe this but I suspect that the
real reasons also lie in the areas of secret intelligence so we are
not likely to know the details for some while.
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