Speaker of the House John Boehner has called NSA leaker Edward Snowden a “traitor,” but in order to be a traitor to the United States, you have to be convicted of treason. As of today, that’s impossible.

Treason is the only crime specified in the Constitution, and here is what our founding document says about it, from Article Three, Section Three:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.



The Supreme Court has interpreted this to mean that no one can commit treason unless it’s with a country against whom our Congress has declared war. This means that neither the Vietnam War nor the Korean War nor the War on Terror can yield treasonous Americans, as none of these wars were declared by Congress. The last declared war was World War II and the last American convicted of treason was Tomoya Kawakita, who helped the Japanese in WWII and was convicted in 1952. Kawakita was later pardoned by John F. Kennedy (on the condition that he be deported to Japan for life).

When asked if Snowden had committed treason, Rep. Aaron Schock said, “That’s correct. He made an oath when he got clearance to get some of the most sensitive information about how we go after suspected terrorists, suspected criminals who wish to do our country harm, and he made an oath to this country. He wasn’t just a random employee. And when you violate that oath to our country you commit treason against this country.”

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It’s unclear whether Snowden ever took an oath at his job as a civilian employee of a private contractor. Even if he had, like members of Congress, he still could not be convicted of treason.

“For the Speaker of the House and the young Congressman and half the people on Twitter: if it feels like treason, it must be treason,” said msnbc’s Lawrence O’Donnell on the Rewrite Monday.

O’Donnell noted that neither China nor Russia are our enemy, which is why none of the Americans caught spying for the Soviet Union was charged with treason.

“So call Ed Snowden what you will, but if you call him a traitor, if you say he’s guilty of treason–you aren’t really labeling him, you are labeling yourself,” O’Donnell said. “You’re letting us know, for you, facts don’t matter. You’re letting us know that you believe you get to define treason any way you want even though the Founding Fathers defined it for you very clearly in the Constitution–a Constitution that you have not read and do not understand. You are labeling yourself as a perfectly acceptable of the current Congress where they all take an oath to ‘support and defend the Constitution of the United States,’ but none of them take an oath to read it.”