Sunday, as I write this, there are some reports that NSA-whistleblower Edward Snowden is seeking asylum from Ecuador, and that Hong Kong had rejected as procedurally deficient the United States demand for his provisional arrest under our extradition treaty.

Friday someone released the complaint cover sheet reflecting federal charges against Snowden. The cover sheet just shows what he's charged with; the affidavit in support of the complaint — the statement of the probable cause allegedly supporting the charges — remains under seal. (I've described the role of a criminal complaint in the federal criminal justice system.) The complaint was obtained fairly hastily, probably to support a request that Hong Kong provisionally arrest Snowden in anticipation of a formal extradition request.

Snowden is charged with three federal crimes: theft of government property, unauthorized communication of national defense information, and willful communication of classified communications information with an unauthorized party.

He's charged with theft of government property under Title 18, United States Code, section 641:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

Here's how the government describes the elements of that offense — that is, the things the government must prove:

There are six elements to the crime of embezzlement, as defined in 18 U.S.C. § 641. These are: (1) a trust or fiduciary relationship between the defendant and the property owner; (2) the property taken falls within the statute; i.e., it must be government property . . . ; (3) the property came into the possession or care of the defendant by virtue of his employment; (4) the property belonged to another, in this case the United States; (5) the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his own use; and (6) the defendant acted with the intent to deprive the owner of the use of this property.

Snowden's charged with unauthorized communication of national defense information under Title 18, United States Code, section 793(d):

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; Shall be fined under this title or imprisoned not more than ten years, or both.

The elements of 18 USC 793(d) are as follows — the government must prove that the defendant:

(1) lawfully had possession of, access to, control over, or was entrusted with information relating to the national defense; (2) had reason to believe that such information could be used to the injury of the United States or to the advantage of any foreign nation; (3) willfully communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted such information; and (4) did so to a person not entitled to receive it.

Finally, the feds have charged Snowden with willful communication of classified communications information with an unauthorized party in violation of Title 18, United States Code, section 798(a)(3), which provides:

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— (3) concerning the communication intelligence activities of the United States or any foreign government; Shall be fined under this title or imprisoned not more than ten years, or both.

I don't find any published cases articulating the elements of Section 798(a)(3). Based on the plain language of the statute, it seems to require the government to prove that the defendant (1) knowingly and willfully [that is, not accidentally] (2) communicated or made available to an unauthorized person, (3) in any manner prejudicial to the United States or for the benefit of any foreign government to the detriment of the United States, (4) classified information concerning communication intelligence activities of the U.S. or any foreign government. (Some might disagree that element (3) modifies all the possible ways to violate the statute.)

Note that the second and third charges both require the feds to prove that Snowden's release of information to the press was harmful to the United States. This puts our government in the position of attempting to prove that it is harmful to release accurate information about how it is spying on us, and how it is misleading us about spying on us.

Espionage charges usually describe someone with classified information leaking that information to powers hostile to the United States government.

We, the people, are those hostile powers.

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