am 0 na

rn

® Under the “protective” principle, jurisdiction is based on whether the national interest or

VSENURFÜR ÜBNDIERSTGERRAULA

RUBIN, WINSTON, DIERCKS, HARRIS & CooKke, L.L.P.

With regard to the last ofthese principles, an oft cited 1935 Harvard Law study’
attempted to answer the question: To what extent.does international law permit a nation to

exercise extraterritorial criminal jurisdietion? The study found five categories or principles

“ corresponding to the circumstances under which the nations ofthe world had declared their.

criminal laws applicable: (1) the territorial principle which involves crimes oecurring or having
an impact within the territory of a country; (2) the nationality principle which involves crimes
committed by its nationals; (3) the passive personality principle which involves crimes

committed against its nationals; (4) the protection prineiple which involves the crimes which

have an impact on its interests as a nation; "and (5) the universal principle which involves

crimes which are universally condemned. (emphasis added).

Current application of the exercise of extra territorial criminal jurisdiction is either °
express or implied. The express category includes misconduct when it occurs within the special
maritime and territorial jurisdietion ofthe United States. This has been expanded to encompass .
air travel, customs matters, spaceflight, evasive submersible stateless underwater vessels,
overseas federal facilities and federal employee residences, members ofthe armed forces and
those accompanying them, and overseas human trafficking and sex offenses by federal employees

and U.S. Military personnel and those accompanying them.

? Harvard Research i in International Law, 29 AMERICAN JOURNAL OF INTERNATIONAL
LAW (Supp.)(Harvard Study) 439, 445 (1935),

national security is threatened or injured by the conduct in question. United States v. Felix-
Gutierrez, 940 F.2d 1200, 1206 (9th Cir. Cal. 1991).

5

VS NR SR ENTER TER UCH

RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

A second category is extra territorial applicätion based upon treaty. The range of these

treaty-based federal crimes differs. Some have extraterritorial application only when the offender

is an American. Some address misconduct so universally condemned that they fall within federal

jurisdiction regardless of any other j urisdictional considerations as long as the offender flees to
the United States, is brought here for prosecution, or is otherwise “found in the United States”
after the commission ofthe offense. Some enjoy extraterritorial application under any ofa

number ofthese and other explieit jurisdictional circumstances,

A third category are those criminal statutes which expressly state that they have extra

territorial application.

A fourth category are those crimes prosecuted under the Maritime Drug Law Enforcement
Act (46 U.S.C. 70501-705 07) which expressly authorizes extraterritorial coverage offederal
criminal law predicated on nothing more than the consent ofthe nation with primary criminal

Jurisdiction.

- A great number of statutes have extra territorial application where Congressional intent to
permit extra territorial application is implied. These include statutes designed to protect federal

officers, employees and property, to prevent smugglin 5 and to deter the obstruction or corruption

‘ofthe overseas activities of federal departments and agencies. Courts have routinely inferred

congtessional intent to provide for extraterritorial jurisdiction o over foreign offenses that cı cause
domestic harm. United States v. MacAllister, 160 F.3d 1304, 1308 n.8 (1 1° Cir. 1998) (extra

territorial jurisdiction applies “where the defendant's actions either produced some effect in the

nn nennen

 

VSENORFÖR BENDIERSTGERRAUCH

RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

United States, or where he was part of a conspiracy in which any conspirator's overt acts were _

- committed within the United States’ territory.”)

Included in the statutes where extra territorial jurisdiction is implied are the so-called

piggyback statutes whose provisions are necessarily related to some other crime. An individual _

may be guilty of conspiracy to violate a federal law within the United States notwithstanding the

fact he never enters the United States. It is sufficient that he is a member of a conspiracy to

. violate the American law. The rationale should apply with equal force to the case of any

accessory to the violation of any federal crime. United States v. Felix-Gutierrez, 940 F.2d at
1204-207 (äccessory after the fact violation committed.overseas), Likewise one who aids, abets,

counsels, commands, induces or procures its commission, is punishable as a principal. 18 U,S. C.

2.
IN. Do members of the Bundestag enjoy immunity in the United States?

The Constitution of the Federal Republic of Germany grants Members of the Bundestag
immunity and indemnification for acts done in their capacity as Members oftbe Bundestag.

This grant of immunity is similar to that granted to members ofthe US. Congress. The United

States Constitution, (Article I, Section 6, Clause 1) states that members of both Houses of

° Articles 46 and 47 ofthe German Constitution, Paragraph 107 of the Internal Rules of
Procedure ofthe German Bundestag; The Parliamentary Resolution of March 16,1973 on the
cancellation of parliamentary immunity (reprinted in Annex 6 ofthe Internal Rules of
Procedure ofthe German Bundestag); The Principles pertaining to parliamentary immunity
enacted by the Parliamentary Committee on Votes, Immunity and By-laws on April 24, 1970

‚(reprinted in Annex 6 of'the-Internal Rules of Procedure ofthe German Bundestag).

7

vun mern nenn anne

Asn- nn non

et Et

VSENIRTFÜR NÄNDLIENSTOERRAUCH

RUBIN, WINSTON, DIERCKS, HARRIS & COOKE,L.L.P.

Congress “shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged

. from Arrest during their attendance at the Session of their Respective Houses, and in going to
. and from the same; and for any Speech or Debate in either House, they shall not be questioned in

_ any other Place.” This clause has been interpreted to provide absolute immunity for “legislative

acts” which include conducting legislative hearings.'"

The question then is, if during a legislative hearing in the Bundestag, U.S. classified
information is revealed which would constitute a violation of U.S. criminal law, will immunity
granted by the German Constitution be recognized by the United States so as to act asabarto
prosecution ofthe Bundestag member in the United States? The legal doctrine that determines
the answer to that question is the doctrine of comity between nations, Courts, according to this
doctrine, should appiy foreign law or limit domestic jurisdiction out of respect for foreign
sovereignty. This evolved into the “Act of State Doctrine” which “precludes any review

whatever ofthe acts ofthe government of one sovereign State done within its own keritory by

. the courts of another sovereign State.” First Nat’] City Bank v. Banco Nacional de Cuba, 406

U.S. 759, 763 (U.S. 1972). However, the Supreme Court after describing the Act of State

Doctrine limited its application holding that:

The act of state doctrine is grounded on judicial concern that
application of customary principles of law to judge the acts ofa
foreign sovereign might frustrate the conduct of-foreign relations

2 See, Gravelv. United States, 408 U.S. 606,.626 (1972) (Member’s conduct at legislative
committee hearings, although subject to judicial review in various circumstances, as is legislation
itself, may not be made the basis for a civil or criminal judgment against a Member because that
conduet is within the “sphere of legitimate Icgistative activity.” eiting Tenmey v. Brandhove, 341
U.S. 367, 377-378 am).

|

 

VENURFÜR DEN DEN egraucH
RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

by the political branches of the government. We conclude that
where the Executive Branch, charged as it is with primary
responsibility for the conduct of foreign affairs, expressly
represents to the Court that application of the act of state doctrine
would not advance the interests of American foreign policy, that
doctrine should not be applied by the courts.

Id. at 767-768.

This Supreme Court decision makes it quite clear that ifthe Executive Branch ofthe
United States Government advised a court that honoring the immunity granted to members ofthe.
Bundestag by the German Constitution would not advance the interests of U.S. foreign policy,

the court so advised would not honor that immunity under comity principles.''
IV. Criminal Offenses'
A. Aiding and Abetting

It is a crime in the United States to aid, abet, counsel, command, induce or procure the
commission ofa crime and one who does so is punishable as a principal. 18 U.S.C. 2. Since it is

beyond argument that Snowden stole U.S. classified information and since it also is beyond

argument that both the theft of that information and the revelation of classified information are

crimes, anyone who induces or procures Snowden to reveal that stolen classified information is
guilty as a principal.
B. Accessory After the Fact

While 18 U.8.C. 2 is most directly oh point, 18 U.8.C. 3, which makes being an

» The same result would obtain ifthe legislators are acting through a parliamentary mandate.

2 Ofthe crimes discussed below the only one that could be considered a crime if Snowden was
asked questions that he refused to answer is the crime of conspiracy:

9

VS- NURNURGENDIENSTGESRAUCH

RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

accessory after the fact a crime, also arguably could be charged in circumstances in which one
provides a platform or forum for Snowden to reveal stolen el assified information. However, in
order to be an accessory after the fact one has to receive, relieve, comfort or assist the offender in
order to hinder or prevent his apprehension, trial or punishment. It seems unlikely that the
questioning of Snowden would be regarded as hindering or preventing his apprehension, trial or

}

punishment.

.c. Consp iracy

Conspiracy is defined in U.S. law as an agreement to engage in criminal activity which is
completed when an overt act in fürtherance of the agreement occurs. 18 U.S.C. 371. The overt
act does not have to be eriminal in and ofitself, A phone call, for example, will suffice, If
German legislators or. diplomats enter into an agreement with Snowden to testify which
testimony is contemplated to involve the disclosure of elassified information, and an overt act in
furtherance thereof takes place, the erime of conspiracy is’ complete and that conduct could be
charged as conspiracy to violate the espionage law ISUSCC. 798).

D. Theft of Government Property |

Title 18 U.S.C. 641 makes theft of government property a crime. This section also
inchudes anyone who “receives, conceals, or retains the same with intent to convert it to his use
or gain, knowing it to have been embezzied; stolen, purloined or converted.” Hence, this
formulation would include German legislators or diplomats who “receive or retain” classified

information and/or documents provided by Snowden.

10

u nent uhn r ntuhn nen ram

 

Vs

RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

V. Republishing classified information previously revealed

Classified information does not lose its character as “elassified information” because it
has been revealed i in violation oflaw. Hence, as s a technical matter any republication violates the
US, espionage law (the one charged in Snowden’ s criminal complaint) to the same extent as the
original publication. However having stated that, there has been only one case brought against a
re-publisher and the government eventually dropped that case before it went to trial.

VI. Closed Session Hearings

Closed session hearings Which remain non-public arguably would be a factor that the
United States would take into account in deciding how to exercise its prosecutorial discretion.
However, the Espionage Act makes it a crime to disclose classified information “Tor the benefit .
‘of any foreign government to the detriment of the United States.” 18 7.,8,C. 798. The act is
clearly violated by disclosure of classified information to the Federal Republic of Germany, even

if done so in closed legislative session.
VI. Conclusion

We are ofthe opinion that if Snowden provides classified information or documents to

the Bundestag or to German diplomats who interview Snowden, such acts give rise to criminal

exposure under the laws ofthe United States. The United States would have jurisdiction to
prosecute these acts regardless of where they occur. The fact that German legislators have

immunity under German law would not shield them from prosecution in the United States.

* German diplomats (in Russia, for example) not accredited to the United States enjoy no

nm nd ern nn in nn

UBNUGFORDEVHERSSEBRAUCH
RUBIN, WINSTON, DIERCKS, HARRIS & COOKE, L.L.P.

privileges and immunities in the United States. These opinions are not intended to opine on
whether the United States would actually choose to prosecute, rather only that the United States

has the legal authority to do so.

Very truly yours,

s/ Jeffrey Hovwiis
Jeffrey Harris
Managing Partner

VEINDR ERDE DENSTBEBRAUCH

 

Opinion on possible English criminal law liability
in the context of disclosure of classified material made by
witnesses to a German parliamentary inquiry

 

Introduction

1.
.parliamentarians) participating in a German parliamentary i inquiry may be exposed to

| am asked to provide an opinion on whether German citizens (and specifically

criminal liability under English law in the event reference is made at the inquiry to
classified material either emanating from, or touching upon, UK security interests,
particularly in circumstances where the original obtaining of this information may
have involved the breach of unspecified English criminal law(s).

For clarity | note that, although the individual who obtained the classified information
in the first place (‘the original witness’) is expected to give evidence to the i inquiry in
person about that material, | am asked to focus not on that individual’s potential
criminal liability but that of others. involved in the.proceedings (either as witnesses or
by asking questions) who may come into contact with or (already?) have knowledge
of the classified material.

| also note at the outset that ! have limited information about the precise scope and
nature of the parliamentary inquiry set up in Germany. My opinion proceeds on the
basis it is a commission which will call on a range of witnesses of different statuses

‚and roles to provide information in open and closed sessions. | do not know whether

the inquiry has the power to compel witnesses to attend and answer questions under
threat of contempt. Furthermore, and significantiy, I do not know the detail of the”
classified information which may be provided either by the original witness who .
obtained it or by other potential witnesses in the proceedings. This. necessarily
means that the discussion in the paragraphs below occurs at a general level. | am
not in a position to apply the principles discussed to the precise facts of this case. If
further information is sought In this regard, please let me know.

Summary

 

VENNREIR BENDISTGEBRAUCH

4. It is my opinion that German citizens who participate in a German

parliamentary inquiry, in which reference is made to evidence or information

classified in the UK, whether now in the public domain or not, would not be

_ liable to prosecution as a matter of English criminal law. The key reasons for

this are:

a. | have identified no offence with the extraterritorial jurisdietion to

criminalize such conduct committed by foreign nationals abroad;

. Inany event, the purpose behind such a parliamentary inquiry (and the

actions of any witnesses or those conducting the questioning) would
not likely satisfy the requirements creating liability for any potential
English offence;

. The UK offences concerned with disclosure of classified information

require in advance of any prosecution the express consent of the
Attorney General. In the circumstances of this case, even if potential
liability arose (which 1 conclude it does not), I cannot foresee
circumstances in which such consent would be given to prosecute
German parliamentarians for participating in a parliamentary inquiry.

5. If, in the course of the inquiry, the original witness somehow provided

information that rendered him punishable under UK law, I do not consider (in

general terms) that those conducting the inquiry would be judged to have

aided, abetted or conspired in the commission of any criminal offence

committed by that witness contrary to English law.

6. In addition, and quite separately from the legal issues | am asked to consider,

there would be extremely strong public policy considerations for no

prosecution being contemplated by UK authorities.