Thursday, February 6, 2014

Can Glenn Greenwald be Tried for a Crime in the Snowden/NSA Affair?

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: 

§ 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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