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NSA Leaker Edward Snowden a Traitor?

NSA Leaker Edward Snowden a Traitor?

American computer specialist and former National Security Agency (NSA) contractor Edward Snowden, made waves in 2013 when he released numerous top-secret NSA documents to media outlets around the world. Many individuals in the White House, Capitol Hill and U.S. intelligence agencies alike, found Snowden’s conduct reprehensible, going so far as to label it a treasonous act under U.S. law.

Diane Feinstein, Chair of the Senate Intelligence Committee, John Boehner,  Speaker of the US House of Representatives, and Bill Nelson, United States Senator all labeled Snowden’s conduct an “act of treason.”

Even the United States Secretary of State John Kerry, a politician recognized for his active criticism of the U.S. Government, called Snowden a “traitor to the oath he took to his fellow employees, to the duty he took freely by his own choice.”

An analysis of the U.S. Constitution, however, shows this reasoning to be inaccurate. Article 3, §1 of the Constitution states that “[t] reason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

According to Law Professor Carlton Larson at UC-Davis, this clause means that the Government can only charge a person with treason if it can show that 1) he or she actively waged war against the U.S. or 2) aided and comforted a declared U.S. enemy, present two witnesses to testify to the “overt act” of treason in question, and demonstrate that the accused’s actions were treacherous in nature.  The facts surrounding Snowden’s case do not appear to confirm to any of these three requirements.

In Ex Parte Bollman (1807) and United States v. Burr (1807), the Supreme Court held that treason premised on the grounds of levying war against the U.S. could only be established if the accused was part of a physical assemblage of men for a treasonable or purpose or had have helped aid such an assemblage.  Such a requirement was satisfied in the case of Aaron Burr, who assembled armed forces with the intent to create an independent country in the center of North America.  Larson does not believe that Snowden’s actions, which were limited to the online release of documents, satisfied either of these conditions.

In Cramer v. United States (1945), the Supreme Court held that treason based on the grounds of adhering to the enemy could only be established if the accused possessed the specific intent to harm the United States. The rendition of aid to the enemy without such did not qualify. Given the lack of evidence that Snowed intended to harm the United States by leaking security documents,  it could not be said that he was guilty of adhering to the enemy, even if the leak had benefited the enemy. Moreover, in order to be found guilty of adhering to the enemy, the accused must have provided aid and shelter to an entity or State with which the U.S. is actively at war.

The federal courts’ strict interpretation of the term “actively at war” has prevented many individuals from being charged with treason.  Julius and Ethel Rosenberg, the infamous American couple found guilty of spying for the Soviets, for instance, were never tried for treason because the U.S. was not “actively” at war with the Soviet Union during the Cold War.

Given that the Snowden’s actions were geared towards the world wide web rather than any specific State or entity, it does not follow that he helped or intended to help a declared U.S. enemy. Rather, Snowden stated that his “sole motive [was] to inform the public as to that which is done in their name and that which is done against them.”

Even if the Government could establish that Snowden had waged war against the U.S. or provided aid and comfort to a declared enemy, it would still have to produce two individuals to attest to Snowden’s actions in open court and show that his behavior was treacherous in nature.

The second requirement has not been proven or disproven as the Government has yet to produce credible witnesses to that effect.

The third requirement is unlikely to be satisfied given current legal precedent. In  Kramer v. United States, the Supreme Court ruled that an act must actively help the enemy in order to be treasonous under the Constitution. The Court held that Anthony Cramer, who was accused of aiding Nazi agents during WWII,  did not actively aid the enemy because his actions did not manifest “… a criminal intention … tend [ing] toward the accomplishment of a criminal object.”

According to this line of reasoning, Snowden’s behavior was arguably not treasonous because it did not show a criminal intent to commit espionage against the United States to aid a third party. Rather, Snowden viewed the act as a concerned effort to inform the American public about their government’s actions that he felt destroyed the “privacy, Internet freedom and basic liberties of people around the world.”

Although Edward Snowden could be prosecuted under various criminal charges including espionage, he is unlikely to be charged with treason because his actions fall short of the high standard set forth by the Supreme Court and the Constitution.  The Government would have a difficult time pursuing this charge because Snowden did not actively wage war against the U.S., aid or comfort a declared U.S. enemy, or behave in a way regarded as “treacherous” under U.S. legal precedent. Rather, his actions seemed to have been motivated by a desire to inform the public about a governmental practice that he found to be offensive to the letter of the law. Regardless of the questionable character of his actions, claims that he is guilty of treason appear to be both legally and constitutionally inaccurate.


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