The word “treason” has been thrown around a lot lately in relation to alleged leakers Edward Snowden and Bradley Manning, but it turns out that no one accusing them of the crime actually seems to understands what it means.
Senate Intelligence Committee Chairwoman Dianne Feinstein called Snowden’s leak an “act of treason,” as did Florida Democratic Sen. Bill Nelson, while House Speaker John Boehner called the leaker a “traitor.” And they were only the most prominent of a slew of columnists and officials. For instance, former UN Ambassador and Fox News regular John Bolton called the leak “the worst form of treason.”
Treason is the only crime specifically defined in the Constitution, and considering how much people in Washington say they love the founding document, one would think they would have read it a bit more closely, because experts say that among Snowden’s potential crimes — and they are crimes, in all likelihood — treason is almost definitely not one of them.
“It’s a narrow and specific definition,” New York Law School professor and constitutional historian R. B. Bernstein told Salon. As described in Article III, Section 3: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Bernstein says this means that “you need to show specific intent to make war” against the U.S., or aid the enemy. “There’s just none of that here,” he said.
Other experts agree, Politico reports, noting that prosecutors charged Manning with “aiding the enemy,” but not treason.
To make matters worse for those who label Snowden a traitor, treason generally only applies when a suspect colludes with a country against whom the United States has declared war. But Washington hasn’t officially declared war on anyone since World War II. Even during the Cold War, prosecutors did not use the charge against people like CIA agent Aldrich Ames, who sold secrets to the Soviets, because the U.S. was not technically at war with the USSR. In reality, treason has been invoked rarely in history — just 30 times since the founding.
And the Constitution says, “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.” That means you’d have to find two people who saw Snowden leaking secrets, which sounds like a tall order.
Scott Bomboy of the National Constitution Center notes that the founders set an intentionally high bar for treason — and put it in the Constitution — because British authorities abused the charge to punish enemies. The crown even considered it treasonable for a woman to murder her husband.
There are plenty of other crimes Snowden may be charged with, from improper use of computers to violations of the Espionage Act, but treason likely isn’t one of them and lawmakers should know better. “I don’t care what the popular usage is, if you’re talking about something in a legal context, you have to be correct,” Bernstein said.