Playing the same game: why prosecuting Robert Hanssen requires prosecuting Edward Snowden

• Pages: 325-363
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Becca Ebert
• Subject Matter: Criminal Law

NOTES

PLAYING THE SAME GAME: WHY PROSECUTING ROBERT

HANSSEN REQUIRES PROSECUTING EDWARD SNOWDEN

Becca Ebert*

ABSTRACT

There is often a stark divide in the public’s discussion of the legal and moral culpa-

bility of spies and leakers. In common parlance, spies are duplicitous individuals who

are sent to a country solely to obtain secrets or who betray their own country to

divulge secrets to a foreign adversary, whereas leakers are principled individuals

who assume great personal risk to publicly uncover government wrongdoing. Spies

operate in the realm of foreign relations, prompting discussions of international law,

while leakers work domestically, prompting analysis of government overreach and

First Amendment protections. However, a legal and operational analysis of spies and

leakers indicates that their actions are not as different as public discourse suggests.

This Note seeks to place spies and leakers within the same legal framework. By

exploring the inadequacy of international law to regulate the collection and disclo-

sure of government secrets, this Note centers on the Espionage Act’s criminal pro-

hibitions of the unauthorized access, disclosure, and receipt of sensitive information.

Exploring the contours of the Espionage Act’s application to spying and leaking

requires understanding intelligence gathering operations and appreciating the

harms resulting from the disclosure of sensitive information, whether from a spy or

a leaker. This Note then argues that common calls to reform the Espionage Act—

from asserting absolute First Amendment protection to exploring a defendant’s sub-

jective intent—are untenable in practice and undermine the goals of the Act: to pro-

tect against harms to national security by deterring the unauthorized disclosure of

sensitive information. Instead, this Note argues that the current operation of the

Espionage Act strikes a fair balance between protecting national security and

upholding the fundamental values of this country. This Note calls for prosecutorial

decisions that promote the Act’s deterrent effect and improve public perceptions of

the Act’s legitimacy. Finally, this Note hopes to spark the simultaneous appreciation

for the complex decisions necessary to keep this country secure and gratitude for the

values and principles that make this country worth securing.

* J.D. from Georgetown University Law Center (2024); M.A. in Security Studies from Georgetown

University (2024); B.S. in Mathematics from University of Puget Sound (2016); B.A. in Politics and Government

from University of Puget Sound (2016). Sincere thanks to Professor Mary DeRosa for her feedback on this paper

and her experienced guidance in the space of national security lawyering. Many thanks to the entire staff of

ACLR for their thoughtful and detailed review. © 2025, Becca Ebert.

325

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

I. THE INCONSEQUENCE OF INTERNATIONAL LAW IN REGULATING

ESPIONAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

A. Espionage in International Law . . . . . . . . . . . . . . . . . . . . . . . 329

B. A Practical Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

C. Domestic Law Fills the Gap . . . . . . . . . . . . . . . . . . . . . . . . . 334

II. THE REQUIREMENTS OF DOMESTIC LAW TO PUNISH AND DETER

ESPIONAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

A. History and Use of the Espionage Act . . . . . . . . . . . . . . . . . . 336

B. Current Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

C. Other Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341

D. Special Considerations of Espionage Act Prosecutions . . . . . . 343

III. RECONCILING PERCEPTION WITH REALITY: A HOLISTIC APPROACH TO

ESPIONAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

A. Updating Public Understanding of Modern Espionage . . . . . . 345

1. Technology Facilitates Disclosures . . . . . . . . . . . . . . . . . 345

2. The Need To Protect Current and Future “Sources and

Methods”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346

3. The Harm Exists in Covert and Public Disclosures . . . . . . 348

B. Responding to Attempts To Distinguish Spies and Leakers . . . 351

1. The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 351

2. Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

3. Balancing Harm to National Security with Benef‌it to Public

Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

IV. REFORMS FOR A COHERENT, LEGITIMATE LEGAL REGIME . . . . . . . . . 358

A. Clarifying the Espionage Act’s Operation . . . . . . . . . . . . . . . 360

B. Improving Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

INTRODUCTION

June 2023 was a notable month in the world of espionage. On June 5, 2023,

Robert Hanssen, a former Federal Bureau of Investigation (FBI) agent convicted

of spying for Moscow, died in his prison cell.

1

Peter Baker, Robert Hanssen, F.B.I. Agent Exposed as Spy for Moscow, Dies at 79, N.Y. TIMES (June 5,

2023), https://www.nytimes.com/2023/06/05/us/robert-hanssen-spy-dead.html.

The very next day marked the ten-

year anniversary of the f‌irst media story revealing classif‌ied information that

Edward Snowden removed from the National Security Agency (NSA).

2

David Smith, What’s Really Changed 10 Years After the Snowden Revelations?, GUARDIAN (June 7, 2023),

https://www.theguardian.com/us-news/2023/jun/07/edward-snowden-10-years-surveillance-revelations.

Hanssen’s

and Snowden’s actions are strikingly similar: accessing and disseminating

1.

2.

326 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:325

numerous highly classif‌ied documents without authorization. Indeed, both were

indicted under the Espionage Act. Hanssen pled guilty to f‌ifteen counts of espio-

nage and was sentenced to life in prison.

3

Snowden was charged with violating two

provisions of the Espionage Act

4

and is currently living in Russia to avoid prosecu-

tion.

5

Despite the similarity of their charged activities and the years since Hanssen’s

2001 arrest and Snowden’s 2013 disclosure, public opinion toward these individuals

differs drastically—even irreconcilably. Hanssen is remembered as “the most damag-

ing spy in bureau history,”

6

while Snowden, to many, “will go down in history as one

of America’s most consequential whistleblowers.”

7

Glenn Greenwald, Ewen MacAskill & Laura Poitras, Edward Snowden: The Whistleblower Behind the

NSA Surveillance Revelations, GUARDIAN (June 11, 2013), https://www.theguardian.com/world/2013/jun/09/

edward-snowden-nsa-whistleblower-surveillance.

These opposing reputations highlight how the recipient of classif‌ied materials

inf‌luences public perception. Hanssen’s disclosures to foreign agents exemplify

“classic spying” whereas Snowden’s disclosures to the media constitute “leak-

ing.”

8

There are no standardized def‌initions for “spying” and “leaking.” For ease, this Note uses “spy” to refer to

“classic spying,” often def‌ined as the secret disclosure of classif‌ied information to foreign agents working against

the spy’s country, and “leaker” to refer to the unauthorized disclosure of classif‌ied information to the media. See,

e.g., Ursula Wilder, The Psychology of Espionage and Leaking in the Digital Age, 61 STUD. INTEL. 1, 2 (2017),

https://www.cia.gov/resources/csi/static/Psych-of-Leaking-Espionage.pdf (“Spies engaged in espionage secretly

deliver classif‌ied information to a party the spy understands is working directly against his or her own country . . . . Spies

who leak make classif‌ied information publicly available without authorization, usually through contacts with media

outlets or via the Internet.”). However, the central argument of this Note is that such distinctions are arbitrary, and

both spies and leakers are committing espionage.

Hanssen and Snowden represent extreme cases, yet recent indictments dem-

onstrate the continued divergence in public opinion. Also in June 2023, then-

former President Donald Trump and Massachusetts Air National Guardsman Jack

Teixeira were separately indicted for disclosing classif‌ied information. On June 8,

2023, Trump was indicted under the Espionage Act

9

Indictment at 28, United States v. Trump, No. 23-80101-CR, 2024 WL 3404555 (S.D. Fla. July 15, 2024).

The U.S. District Court for the Southern District of Florida dismissed the case on grounds that the special

prosecutor lacked proper authority. Trump, 2024 WL 3404555, at *46–47. The government initially appealed but

eventually moved to dismiss the case after the November 2024 election. See, e.g., Hugo Lowell, Prosecutors

Drop Election Interference and Documents Cases Against Trump, GUARDIAN (Nov. 25, 2024), https://www.

theguardian.com/us-news/2024/nov/25/trump-criminal-case-dismissed.

for retaining classif‌ied docu-

ments as a private citizen

10

Alan Feuer, Maggie Haberman, William K. Rashbaum & Ben Protess, Trump Is Charged in Classif‌ied Documents

Inquiry, N.Y. TIMES (Aug. 17, 2023), https://www.nytimes.com/live/2023/06/08/us/trump-indictment-documents#justice-

department-charges-trump-in-documents-case; Max Matza, If Trump Isn’t a Spy, Why Is He Being Charged Under the

Espionage Act?, BBC (June 14, 2023), https://www.bbc.com/news/world-us-canada-65910903.

and disclosing classif‌ied information to third parties,

including an Australian businessman.

11

Alan Feuer, Ben Protess, Maggie Haberman & Jonathan Swan, Trump Said To Have Revealed Nuclear

Submarine Secrets to Australian Businessman, N.Y. TIMES (Oct. 5, 2023), https://www.nytimes.com/2023/10/

05/us/politics/trump-nuclear-submarine-classif‌ied-documents.html.

On June 15, 2023, Teixeira was indicted for

3. Baker, supra note 1.

4. Complaint, United States v. Snowden, No. 1:13-CR-265-(CMH) (E.D. Va. June 14, 2013).

5. Smith, supra note 2.

6. Baker, supra note 1.

7.

8.

9.

10.

11.

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