In light of revelations about the National Security Agency’s surveillance programs, made thanks to Edward Snowden, many politicians, pundits and sections of American society are eager to brand him a traitor to his country.

Bu what does the Constitution have to say?

In “The Snowden Affair and the Limits of American Treason,” Associate Professor of Law, at the University of Detroit-Mercy, J. Richard Broughton concludes that despite any misgivings or qualms people may have about Snowden, a “traitor” he is not.

Incidentally, Broughton is no cheerleader for Snowden, and in his paper he goes as far as to express sympathy for, though not necessarily agreeing with, those condemn him. However, Broughton’s intellectual honesty compels him to side with what the Founding Fathers intended in regards to prosecution for treason. For that, he should be commended.

What chiefly concerns Broughton is that some anti-Snowden opinions show the “potential shortcomings in the public understanding – and apparently, the understanding of our political leaders, in particular – about the law of American treason.”

Treason holds a unique place among federal crimes. Not only it is listed specifically in Article III of the Constitution, but it is the only federal crime to be explicitly defined. Section 3 of Clause 1 reads 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.

By providing a definition of the crime, the Founders created a peculiar situation. Because it is contained in the Constitution, what constitutes treason cannot be altered except by the amendment process.

According to Broughton, the Treason Clause has gained interest in the last decade or so, primarily after the September 11, but has for the most part been a neglected aspect of Constitutional law. In fact, according to Professor George Fletcher, treason is no longer part of a law school course on criminal law.

The lack of treason cases in the courts has left us with “few opportunities…for courts and lawyers to adequately answer the many questions that could arise from an accusation of, and prosecution for, treason,” according to Broughton.

Broughton highlights several recent cases, such as John Walker Lindh (20 year sentence for providing services to the Taliban and carrying an explosive device during commission of a felony) and Yasser Esam Hamdi (detained in a Naval brig until his case went to the Supreme Court). In both cases, the defendants seemed all but guilty of committing treason, only to be convicted on other counts. It was not until 2006 that the U.S. government obtained its first successful treason indict since World War II against Adam Gadahn for appearing in al Qaeda videos with Osama bin Laden and Ayman al-Zawahiri in which he encouraged further terrorist attacks. Gadahn was never brought to trial, reportedly killed in a drone strike in January of this year.

Putting these cases aside, Broughton states that the key requisite for an act to be considered treasonous is the intent to betray. Not just an act that, as some claim, “gives aid to an enemy.” At the same time, however, the burden of intent means those who unknowingly betray their country as described in the Constitution are not traitors, either.

To be a traitor, Broughton concludes, is to be fully cognizant of the fact, a legal concept known as mens rea – the mental state a person must be in while committing a crime for it to be intentional.

Furthermore a person cannot be guilty of treason merely for expressing sympathies with a foreign government in a time of war, or even refusing to participate in actions to support their country against that enemy.

In the 1945 case Cramer v. United States, Justice Jackson wrote in his opinion:

A citizen may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but so long as he commits no act of aid or comfort to the enemy, there is no treason…. On the other hand, 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 – but if there is no adhere to the enemy in this, if there is no intent to betray, there is no treason. To make treason the defendant must not only intend the act, but he must intend to betray his country by means of the act (emphasis added).

The concept of mens rea presents a bit of a conundrum in the Internet Age, according to Broughton.

“How does American treason law apply to one who communicates information that can be, and in fact is, both helpful and readily available to the enemy, or commits an overt act that in fact assists the enemy, but who does not simultaneously specifically intend to betray the United States?” he queries.

With Snowden, it’s even harder, he writes, because there is no evidence of intent to betray, even if it could be argued, and proven, that his release of government documents ultimately provided aid to the enemy (al Qaeda, ISIS, etc.).

He has stated publicly that he desire – his intent, if you will – was to alert the public to the scope of the American surveillance….at no point does he state that it was his intention to aid the enemy in a war against America or to assist in planning an attack on the United States. Now, of course, one might imagine that he would never publicly say that, even if it were true. He is fully aware that he faces criminal charges and his statements seem naturally self-serving. But the point is that in the absence of such a confession, the prosecution would have to obtain other objective evidence of a desire to do just that, to adhere to the enemy by intending to betray the United States. At least on the existing publicly-available evidence, that would be difficult indeed. One need not agree with his actions in order to concede that there is insufficient evidence of his adherence to the enemy.

Again, Broughton does not write approvingly of Snowden’s conduct, but points out that

“we should endeavor to be more accurate in our use of treason as serious political rhetoric and more conscientious about developing a complete – or, as complete as can be expected, given the complexity and nature of it – understanding of American treason law. American treason is supposed to be hard to prove, hard to prosecute, and hard to punish” (emphasis added).

Interestingly, this provides us with a rare example of where the intent of the Founding concerning Constitution has actually managed to prevail while other sections have been desecrated of any meaning. As Broughton points out, the Founders intentionally wrote a very explicit and narrow definition of treason. Their rationale doesn’t require much thought; less than a decade before, they had all been branded traitors by the British crown for their part in the War for Independence.

Realizing their own situation on the matter, they sought both to avoid retroactively condemning their own actions in breaking away from England as well as limiting the federal government from prosecuting its own citizens for treason simply for defending their natural rights as they themselves had done.

Image by Ken Lund, via Flickr. Licensed under CreativeCommons Attribution-ShareAlike 2.0 Generic

TJ Martinell

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