I don't think it's actually true that whistleblower protections in the US effectively sanction any disclosure or leak if what is leaked somehow implicates some crime. I'd welcome a source to back your assertion up, though.

It's an interesting question the criminality of his actions may from a legal standpoint be completely independent of his status as a whistleblower or spy ( and those two categories may not be mutually exclusive either ).

Certainly he has violated his confidentiality agreements ( a civil liability ) and exposed information that is classified ( potentially a criminal liability ).

And it's possible for rational people to think that he may be doing things that are morally justifiable even if criminal. Where most people who think that investigating systematic acts of lawbreaking ( and wholesale collection of private metadata absent criminal suspicion from private companies by __any__ .gov qualifies as such on first examination ), may believe that those who bring such acts to light should be spared punishment because they are acting in defense of the greater good of society.

It is healthy for us to be reminded that our naive moral calculus is only loosely mapped to our system of laws.

Sure. I'm interested pretty exclusively in the legalisms of this situation, not in the moral dimension (which I don't believe I can learn anything about from a message board).

The Federal Whistleblower Act does not cover Snowden. 5 U.S.C. § 2302(b)(8)(A)-(B). For disclosures not made to the Inspector General or Special Counsel

"if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;"

Also www.aclu.org/pdfs/safefree/disavowed_report.pdf‎ (Page 10)

I acknowledge he has no protection under the Whistleblower Act, having read a bit more. But let me pose a hypothetical.

You find a Top Secret folder lying on a park bench, with records of a horrific crime by a respectable cabal of executive, judiciary, and legislative branch members. The president and his staff, a few FISA judges, and some high-placed congressional cronies have conspired to brainwash everyone with a magic potion, and seize total dictatorial control of the US, then the world. They are using the loose oversight of post-9/11 homeland security to get away with it.

So is it a crime to send that proof to Glenn Greenwald? I'd argue that there are theoretically classified documents that it would not be a crime to make public, and all you can say is Snowden's leak doesn't fit the bill.

Yes it would be a crime. The fact that you think it shouldn't or that there are instance where you think it shouldn't doesn't mean it isn't. The statutes are pretty clear.

"Whoever having unauthorized possession of, access to, or control over 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 to the officer or employee of the United States entitled to receive it"

" 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—"

The law you cite clearly says the information must be "relating to national defense."

In the example I have created, while wildly fantastic and unbelievable, the information does not relate to national defense at all. It is simply a record of a conspiracy committed by powerful people, which was "classified" by those same powerful people.

I was presuming that the justification for any of the actions would be national defense and at least have a tenuous connection to national defense as would be the case in any realistic scenario. It is not hard to come up with one even for your outlandish example.

If he gets a jury trial then all of it is irrelevant. He can be acquitted for any reason whatsoever:

http://en.wikipedia.org/wiki/Jury_nullification

Right, but there are still some sticky issues surrounding nullification.

"This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy."

See: http://law2.umkc.edu/faculty/projects/ftrials/juryseminar/US... http://caselaw.findlaw.com/us-2nd-circuit/1382192.html

Essentially, while jury nullification does exist and should be upheld it is critical that jurors are aware of it beforehand or may be otherwise informed.

This just doesn't come up in most high profile cases. The government will strike any juror who is a threat to use nullification.

Espionage is tried with juries? Source?

What source would you need for that? The 6th Amendment guarantees trial by jury.

Fair enough. I had assumed military trials may be treated differently as Manning's trial didn't have a jury. But it turns out he declined a jury with this reasoning:

> "The answer may be that a tough judge is still a better option than a military jury picked from a pool of serving soldiers that widely considers Manning to be a traitor. "

http://www.telegraph.co.uk/news/worldnews/wikileaks/9901659/...

Yes, Manning is being tried under the UCMJ, but would have had a jury available to him there as well. However: Snowden is a civilian. He can't be tried in a military court (absent his joining the armed forces of some organization we're war with).