Edward Snowden: How much trouble is he in for leaks of NSA snooping?

Prosecutors would certainly pursue mishandling of intelligence and possibly espionage charges that could result in decades of prison time. But the first US challenge is to get Edward Snowden in custody.

The Guardian/AP
This photo provided by The Guardian Newspaper in London shows Edward Snowden, who worked as a contract employee at the National Security Agency, on Sunday, in Hong Kong.

The person who leaked classified US documents on sweeping surveillance programs to the press has now leaked his own identity. Edward Snowden, a young computer system professional for a National Security Agency contractor, revealed on Sunday that he provided information on two NSA programs to The Guardian and Washington Post newspapers. He said his motive was to expose the extent of US electronic snooping and that he’s clear-eyed about the consequences to come.

“I have no intention of hiding who I am because I know I have done nothing wrong,” Mr. Snowden told The Guardian in a story published at his request.

Now that he’s gone public, how much trouble is Snowden in? That depends on a number of factors, including how long he can stay in his current location of Hong Kong, and what the US decides to charge him with if he returns home.

He himself told the Post reporter he worked with that his disclosure of the NSA information “marks my end.” That may be an exaggeration, but the quick answer to the “how much trouble” question starts with “quite a bit,” and then possibly slides up the scale to “tons” and “almost as much as Bradley Manning.”

At trial in the US, prosecutors would certainly pursue mishandling of intelligence and possibly espionage charges that could result in decades of prison time. Each individual document leaked would be considered a separate charge, national security lawyer Mark Zaid told the Associated Press.

Given the number of documents leaked, the Justice Department could probably threaten Snowden with the equivalent of a life sentence, just to start.

Furthermore, prosecutors could pursue a charge of aiding and abetting the enemy, as they have with Bradley Manning, the Army soldier who passed vast amounts of information to WikiLeaks.

The basis for this charge would be that Snowden’s leaks have provided information to terrorists that will allow them to change their behavior and avoid US surveillance.

“Aiding the enemy” is a capital charge. Prosecutors have indicated that they would not seek a death sentence if Manning is convicted, but would ask for life imprisonment.

All this presupposes that Snowden faces trial, of course. Right now that appears to be something he would like to avoid. He has publicly requested asylum from any country willing to give, mentioning Iceland as a possibility. He has spent the past several weeks in a hotel room in Hong Kong, according to Guardian and Post reports, but he checked out Monday and his whereabouts are now unknown. While the US has an extradition treaty with Hong Kong, there may be a legal situation in the former British colony that could help him.

If Snowden requests political asylum in Hong Kong, “he is going nowhere” in the forseeable future, Hong Kong legal expert Simon Young tells The Christian Science Monitor’s Peter Ford.

Hong Kong’s asylum law currently is a “black hole,” according to Mr. Young. It requires the local government to independently investigate asylum claims, but Hong Kong has yet to set up procedures to do so. Doing so now could take months, if not years.

Furthermore, from a public relations standpoint, Snowden has taken steps that could shape the legal environment to his advantage. He has voluntarily identified himself, and asserted that he leaked information that public has a right to know, in the tradition of government whistle-blowers such as Daniel Ellsburg, who made public the secret Pentagon Papers detailing the history of US involvement in Vietnam.

Given this, the Obama administration might want to seek more moderate charges so as not to appear to be overreacting in this case.

It’s also possible that in a legal sense Snowden might be better off just to come home and allow the wheels of justice to start rolling.

In 2009 a federal judge said there are occasions when leaking classified information could be necessary and appropriate, notes government secrecy expert Steven Aftergood on his Secrecy News blog.

But the leaker in question should have the courage of their convictions and argue their case within the legal system, said Judge T.S. Ellis III of the Eastern District of Virginia during a 2009 sentencing hearing for Lawrence Franklin, a Defense Department employee who pleaded guilty to leaking information to the American Israel Public Affairs Committee (AIPAC).

“One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country; but then one has to take the consequences because the rule of law is so important,” said Judge Ellis, according to Secrecy News.

Mr. Franklin was initially sentenced to 13 years in prison for his infractions, but the sentence was later reduced to 10 months' house imprisonment.

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