This Wonkblog article, No, Edward Snowden probably didn’t commit treason, got me thinking about the Pentagon Papers. The circumstances of these two events are eerily similar but I needed to refresh my memory since it occurred a long time ago. Yes, we have been down this path before. Here is the relevant part from the Pentagon Papers Wikipedia article about the that would be pertinent to a potential Snowden treason charge.
Before publication, The New York Times sought legal advice. The paper’s regular outside counsel, Lord Day & Lord, advised against publication, but house counsel James Goodale prevailed with his argument that the press had a First Amendment right to publish information significant to the people’s understanding of their government’s policy.
President Nixon’s first reaction to the publication was that since the study embarrassed the Johnson and Kennedy administrations, not his, he should do nothing. However, Kissinger convinced the president that not opposing publication set a negative precedent for future secrets. The administration argued Ellsberg and Russo were guilty of a felony under the Espionage Act of 1917, because they had no authority to publish classified documents. After failing to persuade the Times to voluntarily cease publication on June 14, Attorney General John N. Mitchell and Nixon obtained a federal court injunction forcing the Times to cease publication after three articles. Times publisher Arthur Ochs Sulzberger said:
Newspapers, as our editorial said this morning, we’re really a part of history that should have been made available, considerably longer ago. I just didn’t feel there was any breach of national security, in the sense that we were giving secrets to the enemy.
Daniel Ellsberg was eventually indicted on charges of stealing and holding secret documents. The trial ended in a mistrial. The administration was in the midst of the Watergate scandal so the charges were eventually dismissed. The Justice department could be sensing a little dÃ©jÃ vu with their case against Mr. Snowden.