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Can Edward Snowden Really Be Convicted Of Treason?

June 21st, 2013 by Andreas Xavier in Public records. Topics:

When National Security Agency contractor Edward Snowden leaked information about a secret data-collection program called PRISM, he knew it would put him in hot water. Already some people in high government positions are using the dreaded “T” word to describe the 29-year-old former analyst. 

“I think he’s a traitor,” said Texas Senator John Cornyn. “He has leaked classified information about intelligence gathering techniques that the United States government has been involved in which have been authorized and overseen by the US government. I don’t know any other word to describe Mr. Snowden.” Cornyn further believes that the whistleblower should be caught and tried. “He should be charged and the outcome decided by a court of law,” he said. “It’s a crime under federal law to leak classified information.”

Time will tell what Snowden’s fate will be. But does he really risk being convicted of treason?

What Is Treason?

The framers of the United States Constitution wanted to give the federal government the power to prosecute enemies of the state, but were afraid that such a law might be abused, as it was under English law. (King Henry VIII, for example, tried people for treason if they criticized his many marriages.) So to make sure the officials in power didn’t make unwarranted accusations of treason, they restricted the meaning of treason of Article III, Section 3 of the Constitution. 

It states:

“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.”

The section gives congress the power to define treason within these set limits — and it has several times. The most notable treason law is the Espionage Act of 1917. This law, which was passed shortly after the United States entered World War I, originally prohibited any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. 

Some Leakers Walk Free

Do Snowden’s actions really qualify as treasonous according to modern law?  While that’s a thorny legal issue that will surely be hacked out in the coming months, it’s interesting to note that in a parallel case in the 1970s, a leaker of classified information was never successfully prosecuted.

In 1971, military analyst Daniel Ellsberg released the classified Pentagon Papers to The New York Times. These documents revealed many of the top-level decisions that were made by the military during the Vietnam war. Much like Snowden, he anticipated that he would eventually face the wrath of the U.S. Justice Department.  “I expected to go to prison for life,” Eisenberg said in an interview in 2011.

On June 28, 1971 Ellsberg turned himself in to face trial. He was formally charged under the Espionage Act of 1917, and faced a staggering 115 years in prison. However, the prosecution had trouble making a case because in part because (much like Snowden) Ellsberg didn’t give any information directly to an enemy of the United States.  According to law professor Douglas O. Linder, “Federal espionage laws targeted most clearly those who provided foreign governments with classified information, not those who gave documents to members of Congress or the American press.” Despite the fact that many government officials (including President Nixon) wanted to see him convicted, the judge in his trial cleared him of all charges.

Extremely Rare

If Snowden is and convicted of treason, he will be one of a handful of people to have this federal crime on their criminal record. In fact, the U.S. government has prosecuted fewer than 20 people for treason, the most recent being Robert Hanssen in 2001. While it shouldn’t be a surprise if Snowden is extradited and forced to stand trial, the U.S. Justice Department faces long odds of getting a successful conviction.

Logan Strain is a blogger for Instant Checkmate.  He writes about personal safety, the law, and relationships.

About the author
Andreas co-founded Xavier Media® in 1996 and has since been involved in all kinds of development, marketing and making money online.


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