In testimony before the Senate Intelligence Committee on Wednesday, Director of National Intelligence James Clapper suggested that, if Edward Snowden had "won," he and his "accomplices" should return the remaining leaked documents to the government. By "accomplices," Clapper almost certainly means "journalists" — if he means anything more than to cast further suspicion on Snowden, the person who ensured that Clapper's legacy would be an embarrassing one.
"Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed, to prevent even more damage to U.S. security."
The Huffington Post's Michael Calderone reported on the exchange and an ensuing comment from Clapper's office. The DNI's spokesman said that Clapper "was referring to anyone who is assisting Snowden to further threaten our national security through the unauthorized disclosure of stolen documents related to lawful foreign intelligence collection programs." Calderone points out that Clapper and other people in the Obama administration have tried since the revelations began to insinuate that Snowden's motivations were questionable and/or that he was assisted by foreign agents in an act of espionage. The statement makes clear, though, that Clapper was referring to the "unauthorized disclosure" of the documents — disclosures that are solely the domain of reporters.
It is no longer simply Glenn Greenwald, who enjoys playing the foil to Clapper and NSA chief Keith Alexander, who is reporting on the documents. The most recent revelations came from ProPublica in partnership with The Guardian and The New York Times; another report earlier this week broke on NBC News.
The word "accomplice" has a specific legal meaning. The Cornell University Law School offers this:
A person who knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime. An accomplice is criminally liable to the same extent as the principal.
That's obviously not an apt descriptor for the journalists mentioned above. Reporting on a leaked document is not a crime. And if the question is whether or not the journalists were accomplices to Snowden, then the crime we're talking about isn't publication, it's the initial theft. Clearly, ProPublica and The New York Times and NBC had nothing to do with Snowden absconding with the NSA's files. Some NSA defenders have tried to imply that Greenwald was complicit in the theft, but there's no evidence of that.
The idea of "returning" the documents is itself ridiculous. While those outlets that possess and are reporting on aspects of the leaked files almost certainly have rigid control over them, the files are outside of the control of the government, as surely as a bootleg movie is outside the control of a film studio. When you open Pandora's box in the digital age, the secrets move fast, multiplying and hiding.
Clapper surely knows enough about the law and about what was stolen to know that what he asks is controversial and isn't feasible. This leak, this crime happened on his watch. The leaks revealed that he lied under oath. Everything about the Snowden situation has been humbling and embarrassing for Clapper and for his tenure. This isn't a legal argument. It's a man under fire who is lashing out.