{"id":4399,"date":"2014-01-16T09:08:02","date_gmt":"2014-01-16T14:08:02","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=4399"},"modified":"2014-02-11T23:44:27","modified_gmt":"2014-02-12T04:44:27","slug":"not-treason","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=4399","title":{"rendered":"Not Treason"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0|\u00a0Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

Not Treason<\/h2>\n

Published in the Maryland Daily Record January 21, 2014<\/p>\n

The fight to shape the public\u2019s 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\u2019t gone well. <\/span>The New York Times recently editorialized<\/span><\/a> that \u201cIt 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.\u201d And, <\/span>as mentioned in these pages recently<\/span><\/a>, 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 <\/span>\u201cdrifting in the direction\u201d of calling Snowden a \u201ctraitor.\u201d<\/span><\/a> This echoed earlier uses of the term by <\/span>Marco Rubio<\/span><\/a>, <\/span>Dick Cheney<\/span><\/a>, and <\/span>Dianne Feinstein<\/span><\/a>.<\/span><\/span><\/span><\/p>\n

Traitor? Hmm.<\/span><\/span><\/span><\/p>\n

These seem like impulsive denunciations, not carefully thought out. And we need some careful thinking, because \u201ctraitor\u201d is one of the most stigmatizing words in our lexicon. It bears mention that <\/span>Snowden has been charged criminally<\/span><\/a>, but not under the treason statute, 18 U.S.C. \u00a7 2381<\/a>. Then too, if the word \u201ctraitor\u201d is being bandied about to offset \u201chero,\u201d it\u2019s not a very thoughtful bit of rhetoric, because most of us know instinctively that a single course of action may be both<\/i> treasonous and<\/i> 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 (<\/span>as one federal judge has provisionally found<\/span><\/a>), this may be the exact kind of moment in which treason, if treason it were, could be deemed heroic.<\/span><\/span><\/span><\/p>\n

What the Constitution Says<\/h3>\n

However, were Snowden\u2019s actions treasonous? It would be an ominous day if they were held to be so.<\/span><\/span><\/span><\/p>\n

Treason is the only crime defined in the Constitution; it \u201cshall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.<\/a>\u201d (The statute merely tracks the constitutional definition.) This language stringently limiting the scope of treason was critical to our nation\u2019s emergence from royal absolutism, and was no doubt adopted in reaction to <\/span>British statutes making all sorts of things treasonous<\/span><\/a>, including sleeping with the King\u2019s daughter, killing a justice of the peace, or striving to hinder the royal succession.<\/span>[1] 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,<\/span>[2] that there can be no such thing as \u201cconstructive treason.\u201d It must be the real thing.<\/span><\/span><\/span><\/p>\n

And the facts of the Snowden case highlight why the Framers\u2019 narrowing of the definition is important.<\/span><\/span><\/span><\/p>\n

Not Levying War<\/h3>\n

Let me start with the easy part. No one, I think, would seriously accuse Snowden of \u201clevying war\u201d 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. <\/span><\/span><\/span><\/p>\n

His treason, if any, must lie in the second half of the definition: \u201cadhering to\u201d the nation\u2019s \u201cEnemies, giving them Aid and Comfort.\u201d <\/span><\/span><\/span><\/p>\n

The phrasing of the second half of the definition strongly suggests that the two actions, \u201cadhering\u201d and \u201cgiving Aid and Comfort,\u201d must both be present, and that the principal act is \u201cadhering,\u201d while the \u201cgiving Aid and Comfort\u201d is merely the way \u201cadhering\u201d is embodied. Otherwise put, the incidental \u201cgiving\u201d of \u201cAid and Comfort\u201d is not the definition of nor a synonym for \u201cadhering.<\/span><\/span><\/span><\/p>\n

It had better be that way, because if it means anything else \u2013 if giving Aid and Comfort to our Enemies is uncoupled from adhering to those Enemies, we\u2019re all in trouble. We would all be open to inadvertent acts of treason on a daily basis, as becomes apparent on a moment\u2019s reflection.<\/span><\/span><\/span><\/p>\n

Making Our Enemies Comfortable?<\/h3>\n

Let\u2019s assume this nation has \u201cEnemies\u201d within the meaning of the Clause \u2013 an assumption that, however, sits badly with the decisional law we have on the term \u201cEnemy.\u201d (Generally something close to declared war waged by a sovereign nation is required to constitute that nation or a citizen thereof our \u201cEnemy\u201d for Treason Clause purposes.<\/span>[3] And currently we are in no such war.) But assume anyway that we have \u201cEnemies.\u201d We can further safely assume these \u201cEnemies\u201d would be happy to see anything \u2013 anything at all \u2013 happening that frustrated the purposes of our government. Of course it could be something that the intelligence community hated, like Snowden\u2019s exposure of the NSA\u2019s metadata sweep. But it could just as well be the foulups in Obamacare. Our Enemies would cheer any of it. Hence, any action calculated to promote the frustration of any<\/i> governmental purpose could be deemed \u201cAid and Comfort.\u201d<\/span><\/span><\/span><\/p>\n

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\u2019re 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.<\/span><\/span><\/span><\/p>\n

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.<\/span><\/span><\/span><\/p>\n

Indispensable Intent<\/h3>\n

Wait, you say, surely there must be an intent to give Aid and Comfort. Surely, too, if the primary objective is to exercise one\u2019s citizenly franchise responsibly, the incidental Aid and Comfort our Enemies receive, however great, should not render our speech treasonous.<\/span><\/span><\/span><\/p>\n

I happen to agree. Aid and Comfort to Enemies should only be specifically intended and should only become treasonous if we undertake it because<\/i> we are \u201cadhering\u201d to those Enemies. Those who for other reasons \u2013 like concern about privacy \u2013 engage in speech that frustrates the government should not be deemed traitors, even if \u2013 and here\u2019s where Snowden walks out<\/i> of the trap \u2013 that frustration takes the form of whistle-blowing. Maybe it violates other laws, but not the law against treason.<\/span><\/span><\/span><\/p>\n

Ergo<\/i> Snowden is no traitor. And those who level that accusation should be more careful. It\u2019s 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.<\/span><\/span><\/span>\u00a0<\/span><\/p>\n

And On A Personal Note<\/h3>\n

This piece marks the 10<\/span>th<\/span><\/sup> 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.<\/span><\/span><\/span><\/p>\n

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 <\/p>\n

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[1]. In so commenting, I am admittedly contradicting the bluff assertion of a Circuit Judge 180 years closer than we are to the Framers to the effect that the constitutional definition should be interpreted exactly as the British statutes read. In re Charge to Grand Jury- Treason<\/i>, 30 F. Cas. 1047, 1048 (C.C.E.D. Pa. 1851).\u00a0 Nineteenth-Century American jurisprudence seems full of bland and unsupportable ipse dixits<\/i> like that.<\/span><\/span><\/span><\/p>\n<\/div>\n

\n

[2]. Stephan v. United States<\/i>, 133 F.2d 87, 90 (6th Cir. 1943)<\/a>.<\/span><\/span><\/span><\/p>\n<\/div>\n

\n

[3]. See, e.g. United States v. Greathouse<\/i>, 26 F. Cas. 18, 23 (C.C.N.D. Cal. 1863)<\/a> (Confederacy not an \u201cenemy\u201d for treason purposes, because not a recognized government in open war against us). I have previously argued that \u201cWar\u201d within the meaning of the War Powers clause, was originally meant to require the same kinds of facts, i.e. a sovereign nation after one or both sides have proclaimed formal declarations of war. But the great bulk of our wars are technically \u201cimperfect wars,\u201d i.e. wars without declaration, and this has been deemed acceptable within the meaning of the War Powers clause, no matter how much the Framers would have objected. That said, it should be noted that the Clauses remain independent. Hence we could be in an \u201cimperfect war\u201d and our adversary might still not qualify as a Treason Clause \u201cEnemy.\u201d The position of the Snowden-is-a-traitor crowd appears premised upon both \u201cimperfect war\u201d and \u201cimperfect enemies.\u201d<\/span><\/span><\/span><\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a> | Previous Big Picture Column<\/a> | Next Big Picture Column<\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

There can be no such thing as \u201cconstructive treason.\u201d It must be the real thing. And the facts of the Edward Snowden case highlight why the Framers\u2019 narrowing of the definition is important.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[5260,5265,5266,5271,5261,1061,5268,5270,5259,14,5079,5257,5262,78,5264,5258,665,5269,1167,780,771,4308,3405,5267,5263,1040,276],"class_list":["post-4399","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-18-u-s-c--2381","tag-adhering-to-enemies","tag-aid-and-comfort","tag-civilian-economic-activities","tag-claus-von-staffenberg","tag-confederacy","tag-constructive-treason","tag-dairy-subsidies","tag-dianne-feinstein","tag-dick-cheney","tag-edward-snowden","tag-hero","tag-hitler","tag-john-mccain","tag-levying-war","tag-marco-rubio","tag-michael-hayden","tag-national-security","tag-national-security-agency","tag-new-york-times","tag-nsa","tag-obama-administration","tag-obamacare","tag-roayl-absolutism","tag-traitor","tag-treason","tag-war-powers"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4399","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4399"}],"version-history":[{"count":11,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4399\/revisions"}],"predecessor-version":[{"id":4446,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4399\/revisions\/4446"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4399"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4399"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4399"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}