"I don't look at this as being a whistleblower. I think it's an act of treason." — Senate Intelligence Committee chair Dianne Feinstein (D-Calif.).
"This guy thinks he has a higher morality, that he can see clearer than other 299,999,999 of us, and therefore he can do what he wants. I say that is the worst form of treason." — former U.N. ambassador John Bolton.
That's just a handful of the accusations of treason that have been leveled against NSA whistleblower Edward Snowden since his identity became public Sunday. Basically all of them misunderstand what the word "treason" means.
As Scott Bomboy of the National Constitution Center — a nonpartisan organization and museum in Philadelphia — notes, Article Three, Section Three of the Constitution defines treason as follows:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."
Carlton Larson, a law professor at UC-Davis, explains that this sets up two avenues for treason prosecutions. One is the "aid and comfort" path, wherein somebody aiding a country waging war on the U.S. can be charged, and the other is the "levying war" path, wherein one is charged for actively waging war against the United States, or an individual state.
For example, John Brown, the abolitionist revolutionary who staged the raid on Harpers Ferry, was convicted of treason against the state of Virginia, not against the United States. Aaron Burr, Thomas Jefferson's first vice president, was later prosecuted by the Jefferson administration for treason for allegedly assembling forces to create an independent country in the center of North America, encompassing some Western states as well as Mexican territory. Both of those were "levying war" prosecutions.
It seems obvious that Snowden's actions don't qualify as levying war against the U.S. "All the levying war cases require an assemblage of men and force," Larson explains. "I've never heard of a levying war prosecution that was just about releasing some documents."
But that still leaves open the "aid and comfort" provision. Even that, however, has its limits. For example, you have to be aiding and abetting a country or entity with whom the U.S. is actively at war. That's why Julius and Ethel Rosenberg, when charged with passing state secrets relating to the design of the atomic bomb to the Soviet Union, couldn't be charged with treason. "They couldn't be charged for treason, because the Soviet Union wasn't an enemy for the purposes of treason law, because we weren't at war with them," Larson explains. "So they were charged under espionage provisions, which would probably be the easier prosecution, for leaking classified documents."
Same goes for Aldrich Ames, a former CIA officer convicted of selling secrets to the Soviets, whose actions resulted in the execution of at least 10 Soviet officials who had been working for the U.S. government, as well as Robert Hanssen, an FBI agent whose spying for the Soviets also led to at least three U.S. assets dying.
So the government would have to demonstrate that Snowden was actively trying to provide aid and comfort to a specific entity, such as al-Qaeda, with which the U.S. is at war. What's more, all treason cases require two witnesses to the "overt act" in question. So the federal government would also need two witnesses who observed Snowden leaking the information.
And the act of releasing the information itself would have to be treasonous. Anthony Cramer was charged with treason for associating with Nazi agents who had been sent to the United States for the purposes of sabotage, but the Supreme Court ruled, 5-4, that just meeting with the foreign operatives didn't amount to treason. He had to actively help the German cause for it to count as treason."If it was done in concert, say, with al-Qaeda, there's an argument that al-Qaeda is an enemy for the purposes of the treason clause," Larson says.
But short of that, it's most likely not treason. "My initial instinct is that it's not treason, right?" Larson explains. "Because the provision is aiding the enemy, giving them aid and comfort. That requires some enemy, usually in particular, that you're aiding. Whereas right here he has just leaked material to the whole world."
"The question is whether he adhered to the enemy," says Eugene Kontorovich, a law professor at Northwestern. That standard — adherence to the enemy — both appears in the Constitution and was explicated in the Cramer case. "A citizen may take actions, which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength," Justice Robert Jackson wrote. "But if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason."
It seems hard to argue that Snowden's intent was to betray. By his own account, his "sole motive is to inform the public as to that which is done in their name and that which is done against them."
There are limits to what you can say about treason law, just because cases are so rare. Fewer than three dozen Americans have been charged with the offense, and none have been since the aftermath of World War II, in which a few citizens who allegedly helped the Japanese or German causes. And that includes cases like Cramer's or that of "Tokyo Rose," where the defendant was later exonerated.
So there isn't really a lot of case law about what is and isn't treason. Kontorovich notes, further, that technological developments have raised questions that our decades-old case law on this is ill-equipped to answer. "What if someone wants to spy for a foreign country?" he writes in an email. "The enemy spymaster tells him, 'Don't bother with dead-drops and all these James Bond tricks; just post the information on your blog, which we will be reading, and you'll be a whistleblower, not a traitor.'"
That, Kontorovich, ought to count as treason, though presumably we'd have to be at war with the country in question. And contra the Supreme Court's decision in Cramer, he doesn't even think coordination with the enemy country is strictly necessary. "A reckless disregard could be enough," he writes. "I'm not saying the law reflects this distinction, I'm just saying it is an open and unsettled area." But he concedes that this is a broader definition than the conventional understanding. "'Leaking' or "whistleblowing' is usually seen as distinct from treason because it's unaccompanied by the particular intention the help the enemy," he writes.
Of course, Snowden could always be charged under the Espionage Act or another, less sexy law than the treason provision of the Constitution. But if Julius Rosenberg, who almost certainly spied for the Soviets, couldn't be tried for treason, it's hard to see how Edward Snowden could be, or why federal prosecutors would want to introduce a charge that would be so difficult to prove.
-- Scott Bomboy's piece on treason law and Snowden is worth a full read.
-- So too is the New York Times' editorial today which, regardless of whether or not you agree with its conclusions, includes a lot of valuable information about the relevant legal standards.