DOJ Guidelines: Inappropriate To Prosecute Leaking Gov't Information As 'Theft Of Gov't Property'

from the umm... dept

Well, this is interesting. Last week, of course, it was revealed that the DOJ has charged Ed Snowden for various crimes, including "theft of government property." In fact, Rep. Mike Rogers, the head of the House Intelligence Committee, seems to think this is the key charge, and argues (ridiculously) that the documents "belong to the people of the US" and that Snowden somehow "stole" them by giving the documents to those very same "people of the US."

However, as Declan McCullagh points out, the DOJ's own manual very clearly says that it is "inappropriate" to charge people who take government documents and information with theft of government property, in part because that might lead to unfair prosecution of whistleblowers:

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.

And yet, the "theft of government property" seems to be central to the government's charges against Snowden, suggesting that, yet again, the administration is really grasping at straws in trying to charge Snowden with anything it can dig up for daring to blow the whistle on the surveillance program.

Filed Under: doj, doj guidelines, ed snowden, edward snowden, espionage, leaks, prosecution, theft of government property, whistleblowers

Snowden's Secrets 'Belong To The People Of The US' & He's A Traitor For Giving Them What They Own?

from the no-place-for-logic dept

Over the past few years, we've found that Rep. Mike Rogers, the head of the House Intelligence Committee, has an incredible knack for spewing pure bullshit in defense of whatever he's supporting, rarely even bothering to make sure his statements are internally consistent. Still, his statements on Meet the Press this weekend take that nonsense to a new high. Rogers goes off on Snowden -- who he has already declared "is a traitor" -- arguing in favor of the "theft of government property" charges against Snowden by making the following statement:

"He has taken information that does not belong to him -- it belongs to the people of the United States."

Right. This information that "belongs to the people of the United States," which has been totally hidden from us, was actually finally given to the people of the United States -- to whom Rogers admits it belongs -- by Snowden. And, for that, he's a traitor? How, exactly, does that work? By Rogers' own argument, the information, before Snowden leaked it, was improperly withheld, thanks to people like Rep. Mike Rogers, from the people who own it. Thus, by Rogers' own logic, isn't it actually Mike Rogers who is the traitor in that he withheld crucial information that "belongs to the people of the United States"?

Of course, Rogers didn't stop there. No, no. He continued with his internally inconsistent, and blatantly ridiculous argument by saying that (1) terrorists now know what we're up to and are changing what they do, and (2) so little information has been revealed that everyone thinks they know what's happening, but don't. That makes no sense. If (1) is true, it suggests that the actual details of the program have been revealed and thus wrongdoers now know our methods. But, immediately, he changes course and says that no one really knows what's going on -- in which case he shouldn't be concerned about terrorists changing what they do, because it shouldn't stop the successful programs that no one knows about.

We have seen that bad guys overseas -- terrorists who are committing and plotting attacks on the United States and our allies -- have changed the way they operate. We've already seen that. To say that's not harmful to the national security of the United States, or our safety, is just dead wrong...

[....] This is the problem with having a thousand-piece puzzle, taking three or four pieces, and deciding that you're now an expert on what that picture looks like. You're gonna get it wrong. They're getting it wrong and it's dangerous.

So, let me get this straight. The revealed information means that reporters only see a few pieces of the puzzle so they're getting the story "dead wrong." But... the terrorists, who are reading these stories, are somehow, magically, getting the full picture (the one the reporters are getting dead wrong) and miraculously changing how they act to now avoid NSA surveillance dragnets? How's that work? Answer: it doesn't. Rogers is spewing bullshit.

We don't ask for much from our elected officials, but is it really too much to ask that they make statements that are internally consistent within the brief block of time they open their mouths to yap about some subject on which they're supposedly "in charge"?

Filed Under: david gregory, ed snowden, espionage, mike rogers, theft of government property, traitor