The Snowden Affair and the Limits of American Treason

Abstract

The revelations about Edward Snowden’s leak of American national security information helped to reinvigorate public rhetoric about the crime of treason, which Article III of the Constitution defines only as levying war against the United States or adhering to the enemy by giving aid and comfort. Political leaders and others regularly commented on whether Snowden was a “hero” or “traitor.” And more than one American political leader suggested that Snowden should be tried for treason. But these rhetorical episodes simply demonstrate that despite treason’s stature, numerous gaps remain in the public’s (and even in political leaders’) understanding of the rarely-invoked, rarely-discussed Treason Clause. This paper, written for a symposium on the ramifications of Snowden’s disclosures, therefore focuses on the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” – what the paper calls Adherence Treason, which is the provision most likely at issue in a treason case involving actions like Snowden’s – and examines the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases, the paper examines treason in light of complicity doctrine in the criminal law. It demonstrates how information that reaches the enemy does not constitute treason – even if the information actually aids the enemy, as Snowden’s disclosures could have done – in the absence of a specific intent to betray America, which is the mens rea required for treason and which Snowden appears to have lacked. Still, when viewed in light of complicity law, even the narrow standard for American treason could be implicated by contemporary aid-to-the-enemy cases that are distinguishable from Snowden’s, such as the terrorist-aid cases that are now prevalent but are being prosecuted under the material support statutes instead. These terrorist-aid cases, especially when combined with the modern technology that can make it easier for one to communicate with and assist the enemy, could potentially keep the Treason Clause alive, but only in narrow circumstances where legally sufficient aid and the intent to betray coalesce.

Keywords: treason, criminal law, constitutional law, Treason Clause, accomplice liability, mens rea, material support for terrorism