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Jack L.B. Gohn: Not treason

The fight to shape the public’s perception of Edward Snowden has recently steered us into interesting constitutional territory. The Obama Administration and the NSA, losing control of the debate Snowden sparked, seem desperate to characterize him as a criminal. But that effort hasn’t gone well.

The New York Times recently editorialized that “It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, [and] face at least substantially reduced punishment in light of his role as a whistle blower.” And, as mentioned in these pages recently, Sen. John McCain has lamented that young people perceive Snowden to be a hero. In alarm at the hero and whistleblower talk, Michael Hayden, former NSA director, riposted that he was “drifting in the direction” of calling Snowden a “traitor.” This echoed earlier uses of the term by former Vice President Dick Cheney and senators Marco Rubio and Dianne Feinstein.

Traitor? Hmm.

These seem like impulsive denunciations, not carefully thought out. And we need some careful thinking, because “traitor” is one of the most stigmatizing words in our lexicon. It bears mention that Snowden has been charged criminally, but not under the treason statute, 18 U.S.C. §2381.

Then too, if the word “traitor” is being bandied about to offset “hero,” it’s not a very thoughtful bit of rhetoric, because most of us know instinctively that a single course of action may be both treasonous and heroic. To choose one notable instance, Claus von Stauffenberg, the German colonel who tried to assassinate Hitler, was certainly both traitor and hero. As Stauffenberg showed, it may be heroic to commit treason in certain circumstances, and arguably, with the NSA violating the Constitution on a grand scale (as one federal judge has provisionally found), this may be the exact kind of moment in which treason, if treason it were, could be deemed heroic.

However, were Snowden’s actions treasonous? It would be an ominous day if they were held to be so.

Treason is the only crime defined in the Constitution; it “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” (The statute merely tracks the constitutional definition.) This language stringently limiting the scope of treason was critical to our nation’s emergence from royal absolutism, and was no doubt adopted in reaction to British statutes making all sorts of things treasonous, including sleeping with the King’s daughter, killing a justice of the peace, or striving to hinder the royal succession.

American jurisprudence does follow British in regarding treason as the unique worst of crimes. All the more reason the Framers were careful to prevent it from becoming a catch-all for behavior that happened to displease the authorities. It has been said, for instance, that there can be no such thing as “constructive treason.” It must be the real thing.

And the facts of the Snowden case highlight why the Framers’ narrowing of the definition is important.

‘Adhering’ to the enemy

Let me start with the easy part. No one, I think, would seriously accuse Snowden of “levying war” against this nation. There is no indication he seeks to overthrow our government, by arms or by any other means. And even if terrorism with goals short of these is considered war, he has not leagued himself with those who practice it.

His treason, if any, must lie in the second half of the definition: “adhering to” the nation’s “Enemies, giving them Aid and Comfort.”

The phrasing of the second half of the definition strongly suggests that the two actions, “adhering” and “giving Aid and Comfort,” must both be present, and that the principal act is “adhering,” while the “giving Aid and Comfort” is merely the way “adhering” is embodied. Otherwise put, the incidental “giving” of “Aid and Comfort” is not the definition of nor a synonym for “adhering.”

It had better be that way, because if it means anything else — if giving Aid and Comfort to our Enemies is uncoupled from adhering to those Enemies, we’re all in trouble. We would all be open to inadvertent acts of treason on a daily basis, as becomes apparent on a moment’s reflection.

Let’s assume this nation has “Enemies” within the meaning of the Clause – an assumption that, however, sits badly with the decisional law we have on the term “Enemy.” (Generally something close to declared war waged by a sovereign nation is required to constitute that nation or a citizen thereof our “Enemy” for Treason Clause purposes. And currently we are in no such war. But assume anyway that we have “Enemies.”)

We can further safely assume these “Enemies” would be happy to see anything — anything at all — happening that frustrated the purposes of our government. Of course it could be something that the intelligence community hated, like Snowden’s exposure of the NSA’s metadata sweep. But it could just as well be the foul-ups in Obamacare. Our enemies would cheer any of it. Hence, any action calculated to promote the frustration of any governmental purpose could be deemed “Aid and Comfort.”

The immediate instinctive response I would anticipate from the Snowden-is-a-traitor crowd would be that of course treason can only relate to aid and comfort in the military or national security arena. Really? Where does it say that in the Constitution? Anyway, students of history know that in wartime, recurrent propaganda emphasizes the military significance of non-military activities, specifically including civilian economic activities on the homefront. It all helps defeat the enemy. If we’re at war, then everything counts toward that war, and anything that frustrates the government or hobbles the economy must logically be counted as giving Aid and Comfort.

And now we can see the trap close. Any public speech, for example, opposing any government program, say dairy subsidies, would have a tendency to weaken support for the government, thereby giving Aid and Comfort to Enemies. All acts of dissent would be treason.

Wait, you say, surely there must be an intent to give Aid and Comfort. Surely, too, if the primary objective is to exercise one’s citizenly franchise responsibly, the incidental Aid and Comfort our Enemies receive, however great, should not render our speech treasonous.

I happen to agree. Aid and Comfort to Enemies should only be specifically intended and should only become treasonous if we undertake it because we are “adhering” to those Enemies. Those who for other reasons — like concern about privacy — engage in speech that frustrates the government should not be deemed traitors, even if — and here’s where Snowden walks out of the trap — that frustration takes the form of whistle-blowing. Maybe it violates other laws, but not the law against treason.

Ergo Snowden is no traitor. And those who level that accusation should be more careful. It’s a dangerous word, maybe even more threatening in its implications than scooping up our metadata. Or, if you like, maybe more threatening than revealing how our metadata is scooped.

Author’s Note

This piece marks the 10th anniversary of The Big Picture. Thanks to The Daily Record, it has been my distinct honor to share my views in this column for the last decade, and I hope you have enjoyed the encounter as much as I have, and do.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com