Written by Leonard R. Jaffee   

This article treats the issue of whether Bradley Manning or Edward Snowden did not commit crimes, but solely discharged legal duties of exposing crimes federal officials or military personnel committed.

Manning claims that he acted to expose federal officials' & military personnel's criminal acts law or morality obliged him to expose & that if he did not expose the criminal acts he would be guilty of crime. I do not KNOW the FACTS of the official or military acts Manning claims were crimes. But, for sake of argument, I shall assume the acts were criminal — even felonious.

Manning claims that some allegedly criminal acts were war crimes or other similar crimes that law requires a soldier expose & refuse to join in, further, or support. I do not KNOW the FACTS of the acts Manning denounces. But, for sake of argument, I shall assume the acts constituted war crimes or other, like crimes.

Snowden claims that he exposed certain federal official or military personnel conduct because the conduct was criminal & the law or morality required he expose such conduct. I do not KNOW the FACTS of the conduct Snowden exposed.

If Snowden exposed ILLEGAL searches & seizures (a question no press report has answered definitively or even clearly), a remaining critical question is whether such searches or seizures constituted felonies. For sake of argument, until I indicate otherwise below, I shall assume the exposed conduct was felonious.

At least two U.S. federal statutes punish failing to expose felonious criminal conduct. One is 18 US Code § 3. Another is 18 US Code § 4.

18 US Code § 4 provides:

"Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both."

18 US Code § 3, first paragraph, provides:

"Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact."

Three Nürnberg Principles may apply in Manning's case. The Principles are incorporated into U.S. law.

Principle IV provides:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

Principle VI provides:

"The crimes hereinafter set out are punishable as crimes under international law:
a. Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i)."

[Our Iraq & Afghan wars & occupations & our Pakistan & Yemen drone attacks are wars of aggression & wars that violate international treaties, agreements, or assurances, as was, eventually, our Libya military action (which, eventually, exceeded UN authorization). So, all are or were ILLEGAL & their occurrences & their harmful physical effects CRIMES.]

Principle VII provides:

"Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law."

For the sake of argument, I shall assume that Manning exposed crimes Principles VI(a)(ii) & VII address & that Principles IV, VI(a)(ii), and VII obligated Manning to expose. Also, I ought, and shall, observe — HYPOTHETICALLY — that the crimes may have included NOT ONLY acts the exposed materials evidenced BUT ALSO military or other official conduct seeking to keep secret the materials Manning exposed.

Suppose the military ordered Manning not to divulge any of the materials he leaked. Manning's disclosures would have violated such order. But suppose the ORDER or ORDERS constituted crime — a "common plan or conspiracy" — addressed by Principle VI(a)(ii) or a Principle VI(a)(ii) "common plan" seeking, among else, to obtain the commanded person's "complicity" addressed by Principle VII.

Then Principles IV, VI(a)(ii), and VII compelled Manning to violate such order or orders — IF Manning did not have a moral choice of NOT doing so. UNLESS Manning HAD a moral choice of NOT disclosing what he leaked, he would have violated Principles IV, VI(a)(ii), and VII had he NOT violated the order(s) & exposed the materials he leaked. He would have (1) participated "in a common plan or conspiracy for the accomplishment of any of the acts mentioned" in Principle VI(a)(i) & (2) been guilty of complicity addressed by Principle VII.

Officials & Congress-members & others have suggested that the disclosures imperiled many "innocents" (soldiers, spies, civilians, allies.......) — or many more than were or may have been saved by the leaks. That suggestion poses a question vital here: Whether Manning knew — or ought have known but recklessly disregarded a TRUE risk — that his leaks threatened to do harm more than good.

Did Manning choose the wrong means or recipient of his leaks? Many have asserted that Wikileaks was reckless in its choices of matters to publish — though Wikileaks insists that it used utmost care to redact all the exposure of which might threaten life or limb or impair LEGITIMATE military or diplomatic activity.

Why did Manning not choose to disclose the materials "to some judge or other person in civil or military authority under the United States" (see 18 US Code § 4, quoted above) — rather than to Wikileaks? Did Manning TRY to find some judge or civil or military authority whom Manning could trust to undertake effective remedial action — both curative & punitive — without threatening life or limb or impairing LEGITIMATE military or diplomatic activity?

Suppose, among matters or materials Manning leaked, some showed or tended to show not only violations of the Nürnberg Principles, but also felony violations of U.S. statutory law. The War Crimes Act, 18 U.S.C. § 2441, makes felonious or even a capital offense, "war crimes" the Act includes in its scope. Such "war crimes" are of many kinds — too many to be discussed in this article. The here-pertinent matter is that 18 US Code §4 & § 3 apply to any such war crimes.

I do not KNOW whether Manning's disclosures pertained to the ILLEGALITY of our Iraq & Afghanistan invasions & occupations or our Pakistan or Yemen drone attacks. But if they DID pertain to that matter, they addressed many, many felonies committed by Bush & Obama & their administrations. Such felonies included frequent & mass murder, frequent & mass felonious maiming, and other frequent or mass felonious crimes, since the illegal military actions & CIA drone attacks were (& are) felonious.

[See also, E.G., my article titled "IMPEACHING CHENEY," http://www.usalone.com/jaffee_on_impeachment2.htm — the part set under the heading "What High Crimes and Misdemeanors has Cheney Committed?" & consider what implications would obtain if the subject were not Cheney, but Obama & various of his subordinates.]

If Manning's disclosures were pertinent to the matter of the ILLEGALITY of our Iraq & Afghanistan invasions & occupations & our Lybia invasion & the CIA's illegal drone attacks, a critical matter would be either that the disclosures were not rendered to "some judge or civil or military authority" of the U.S. — rather than to the press or that the disclosures were not rendered ONLY to "some judge or civil or military authority" of the U.S.

If the crimes were ordinary statute-violations (not acts addressed by the Nürnberg Principles), then no MORAL consideration is involved (as it is per Nürnberg Principle IV). The issue is whether 18 US Code §4's mandate is exclusive — whether NOT ONLY must the information-bearing individual disclose to "to some judge or other person in civil or military authority under the United States," BUT ALSO the individual must NOT disclose to any other kind of recipient, like the press.

The government might argue that prosecutorial authorities must be able to control what information is made public before trial of the person or persons incriminated by the disclosed information, lest "justice" be compromised: If the information-bearing person delivers the information to the press rather than ONLY "to some judge or other person in civil or military authority under the United States," the individual preempts prosecutorial discretion and, so, may thwart "justice."

Most such matters fit also Snowden's case. Even if 18 US Code §4 or § 3 or the Nürnberg Principles obliged Snowden to expose what he leaked, why did he not render his disclosures "to some judge or other person in civil or military authority under the United States" — rather than to the press?

If among the matters or materials Snowden disclosed were items evidencing violations of Nürnberg Principles VI or VII, did Snowden not TRY to find a "judge or other person in civil or military authority under the United States" whom he could trust to undertake effective remedial action — both curative & punitive — without threatening life or limb or impairing LEGITIMATE military, diplomatic, or governmental activity? Would such effort not have been a moral choice?

Similar — but not identical — questions fit vis-a-vis 18 US Code §§ 4 & 3 — if Snowden's disclosures did not involve or evidence acts the Nürnberg Principles address. Again, no MORAL issue would be involved (as it is per Nürnberg Principle IV). The issue would be whether 18 US Code §4's mandate is exclusive — whether NOT ONLY must the information-bearing individual disclose "to some judge or other person in civil or military authority under the United States," BUT ALSO the individual must NOT disclose to any other kind of recipient, like the press.

Earlier above I wrote:

"If Snowden exposed ILLEGAL searches & seizures..., a remaining critical question is whether such searches or seizures constituted felonies. For sake of argument, until I indicate otherwise below, I shall assume the exposed conduct was felonious."

Here my assumption ceases. ARE the government's (NSA's & other) mass electronic surveillances felonies punishable by criminal conviction & criminal sentencing — rather than merely "punishable" by exclusion from trial of persons prosecuted for acts involving or disclosed in or by electronic communications "searched" or "seized"?

The question is immensely intricate/complex. This article is not a fitting vehicle for even tentative resolution of the matter, which involves several constitutional provisions (not only the 4th amendment) & various statutory provisions making certain illegal electronic surveillances criminally punishable felonies & also many (very broad & vague & arguably unconstitutional) statutory provisions, including the provisions the government uses to try to justify its surveillances.

Some (not all) prohibitory & punitive statutory provisions are outlined at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01040.htm If you open that website, examine all its pages, which you can reach by "clicking on" the "next" "button" set at each page's top left.

IF Snowden exposed FELONIOUS illegal mass surveillance activities, then 18 US Code §4 matters pertain:

(1) Must the information-bearing individual disclose NOT ONLY "to some judge or other person in civil or military authority under the United States," BUT also NOT to any other kind of recipient, like the press?

(2) Did Snowden try to make an 18 US Code §4 disclosure?

(3) If he DID try, was his attempt disregarded or trashed, and would that fact justify or excuse his rendering disclosure to the press?

(4) If he did NOT try, has he NO defense (except something like insanity) — even on the premise of the 1st amendment or the 9th amendment?

[See the 1st amendment here: http://www.law.cornell.edu/constitution/first_amendment & 9th amendment here: http://www.law.cornell.edu/constitution/ninth_amendment The Supreme Court has never decided a case on the premise of the 9th amendment & in near all cases has treated the 9th amendment as if a bad poem written on a commercial sympathy card. The Court has limited free speech many ways. Perhaps it will limit it soon to render "constitutional" the post-9/11 statutes that seek to transmute certain previously lawful speech into "terrorism" or "aiding" "terrorists" or "terrorist organizations" (except the U.S. or Israeli government) or.......]

Lest the reader wish to burn me in effigy for putting observations that may work against the interests of Manning or Snowden, I add a personal note:

* I applaud Manning & Snowden. I regret that their good deeds may be treated as crimes, perhaps "simply" because Manning & Snowden did not render their disclosures "to some judge or other...civil or military authority" of the U.S. (not unlikely because such rendition would have been futile) — or perhaps because neither sought competent, trustworthy legal advice before determining how or when (or even WHETHER) to render disclosure to the press.

* I doubt Manning or Snowden could find an Obama administration recipient who could be trusted to undertake effective remedial action — curative & punitive — without threatening life or limb, or doing other harm to people or to LEGITIMATE government or LEGITIMATE military interests.

* Suppose Manning or Snowden disclosed ONLY "to some judge or other...civil or military authority" — NOT to the press — any government-incriminating military-or-drone-attack-relevant material he possessed. Since Obama & his administration committed many thousands of the felonies of our ILLEGAL Iraq & Afghan invasions/occupations & Pakistan & Yemen drone attacks & Libya military actions, Obama's Justice Department would not have pursued appropriate prosecutions or the Obama administration stopped its criminal conduct & remedied its past Iraq, Afghan, Pakistan, Yemen, and Libya crimes.

[Near-certainly, Manning did not leak Libya-invasion-relevant material, since he was imprisoned before & throughout the Libya action. I have not witnessed any information suggesting the contrary.]

* If the Snowden-exposed mass surveillances WERE felonies, Obama's Justice Department would not have pursued appropriate prosecutions had Snowden disclosed "to some judge or other...civil or military authority" of the U.S. — since Obama & his administration wrought hordes of the felonies (& since Obama's Department of Justice has determined to prosecute Snowden for "espionage," not for leaking to the press rather than "to some judge or other...civil or military authority" of the U.S.).

* I doubt our government or our military pursues more than very few LEGITIMATE interests.

* I submit this article only to illumine for the non-lawyer reader some of the hard problems that have borne upon Manning's case & will bear upon Snowden's (if he is extradited to the U.S. & suffers criminal prosecution).