Edward Snowden Did Not Commit Treason
In the weeks since The Guardian began publishing details of the National Security Agency’s surveillance programs from a source later revealed to be former NSA contractor Edward Snowden, there have been many calls for his prosecution. To date, no charges have been filed against Snowden that we know of (it’s possible that there may be a sealed indictment that has yet to be revealed), but already politicians have weighed in regarding what they think about the matter. Both House Speaker John Boehner and Senate Intelligence Committee Chairperson Dianne Feinstein have declared Snowden guilty of treason, and that term has been picked up by many in the media and pundit world to describe Snowden’s activities. Treason is a serious charge, of course. It is the only crime specifically defined in the Constitution, and it carries the possibility of a death sentence. At the same time, though, actual charges of treason have been relatively rare in recent years. According to this list, there have only been fourteen convictions for treason in the history of the United States, with the last being in 1952 when Tomoya Kawakita, a Japanese born American citizen was convicted on charges of torturing American POW’s during World War II. Contrary to popular belief, Julius and Ethel Rosenberg were convicted of violations of the Espionage Act, not treason, for which they were later executed. Additionally, none of the Americans caught spying for the Soviet Union or other nations during the Cold War were convicted of treason.
As Seth Lipsky explains in a recent Wall Street Journal piece, Snowden will also avoid an indictment for treason simply because what he is accused of does not meet the elements of the crime:
“Treason against the United States,” the Constitution says, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It adds: “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.”
What this adds up to is that a person has to do one of two things to be a traitor: either levy war or adhere to (form an attachment to, the Supreme Court once said) our enemies, giving them not only aid but also comfort. The two-witness rule has also made treason cases rare in American history.
The liberalism inherent in the Founders’ formulation is one of America’s glories. It means that we Americans can criticize our government during war and even praise an enemy government without being a traitor. Talk doesn’t rise to the level of treason unless one also adheres to the enemy. But if one does adhere, even in passing, watch out.
War has actually to be levied before there can be treason. This was laid down in a Supreme Court ruling in 1807, in a case involving two confederates of Aaron Burr, Erick Bollman and Samuel Swartwout. They’d been put in the dock for treason, accused of having plotted with the former vice president to break off part of America as a separate country.
Chief Justice John Marshall let them go. “To conspire to levy war, and actually to levy war, are distinct offenses,” he wrote in a famous opinion known as Ex Parte Bollman. “The first must be brought into operation by the assemblage of men for a purpose treasonable in itself or the fact of levying war cannot have been committed.” He marked that the “actual enlistment of men to serve against the government does not amount to levying war.”
Then, however, he issued a famous warning.
“It is not,” Marshall wrote, “the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied—that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose—all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
Notwithstanding Chief Justice Marshall’s warning, and the fact that it arguably be used to apply to the “war on terror” even though there has been no formal declaration of war, from what we know about what he did it seems extremely unlikely that Snowden’s actions fall within the legal definition of treason. For one thing, it’s utterly clear that he neither “levyed war” nor adhered to an enemy of the United States. If that “enemy” is described as al Qaeda, then it’s hard to make the case that anything he did constituted levying war or adhering to an enemy of the United States. Snowden, at most, has made public a series of classified documents revealing the nature and extent of the National Security Agency’s data mining of telephone records, the Internet, and credit card transactions as well as information with how the NSA and other Federal agencies interact with the secret court authorized by the Foreign Intelligence Surveillance Act. That may, and likely does, constitute violations of the Espionage Act and other statutes, but it’s not treason. Even if prosecutors were somehow able to meet this first part of the definition of treason, it would seem to be next to impossible for prosecutors to establish the remainder of the legal requirements of the Constitution definitions, not to mention the fact it’s highly likely that there are not two witnesses to the same overt act.
What if, as some have suggested without evidence, Snowden is cooperating in some way with the Chinese by giving them information about how the United States is gaining access to Chinese computer systems and otherwise spying on them? In this case, Snowden would fall into the same category as the Rosenbergs. At the time they committed the acts which led to their convictions, which essentially involved stealing secrets related to the Manhattan Project and passing them to the Soviets, we were still in the middle of World War II and the Soviet Union was an ally, not an enemy. Therefore, just as with the Rosenbergs, Snowden would potentially be subject to charges under the Espionage Act, but not Treason. In Snowden’s case, while China may be characterized as an actual or potential adversary, it would be incorrect to call that nation an “enemy” as the definition of treason clearly intends the term.
Of course, when most people use the word “treason” with respect to someone like Snowden, they likely aren’t thinking of the legal definition, but of the general subject of someone who has betrayed their country in some way or another. In that situation, it becomes more of a social judgment than a legal conclusion. Nonetheless, Lipsky points out, there’s a very good reason why the Founders placed the definition of treason in the Constitution where it would be relatively safe from being manipulated by the legislature:
This is a teachable moment in respect of a heinous crime. It reminds us of why the Founders made it so difficult to bring charges of treason. But it’s also a moment to reflect on a warning sounded by an early chief justice. The constitutional protections against abuses of treason charges remain strong, but once war is levied—that is, waged—citizens will want to take care about how they behave.
For treason turns out to be unique in American law. It is the only crime that the Constitution forbids Congress from defining. It is the only crime to which a court may never accept a confession given to the police. It is the only crime for which restrictions are laid down on how much evidence juries must hear. The Constitution itself underscores that the Founders feared treason law.
No doubt, Snowden will be indicted for something in the near future if that hasn’t already happened. The offenses will likely be serious enough that he could face a life sentence in prison if not the death penalty itself. If the U.S. manages to extradite him, he will stand trial for those charges, but unless there is far, far more that hasn’t been revealed yet, he will not be charged with treason because the facts to support such a charges simply don’t exist. So, while it’s okay I suppose to call Snowden a “traitor” as a means of expressing social approbation, it’s important to remember that the actual crime of treason is hard to prove for a very good reason.