Snowden said in an interview that he's 'neither a traitor nor hero.' Experts: 'Treason' a tough sell in Snowden case

Edward Snowden has been called a “traitor” and accused of “treason” for his leaks of some of the nation’s top secrets.

But is there a case for the T-words?


Treason is a crime so old that it’s the only one specifically defined in the U.S. Constitution, but legal experts suggest it’s a charge that Snowden will most likely never face. And “traitor” seems to fit better in the world of Benedict Arnold and dueling pistols than in today’s sea of electronic surveillance and top secret security clearances.

Constitutionally, treason is defined as “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.”

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That’s a tough sell in Snowden’s case, legal experts say.

“I do not believe it is treason,” said George Washington University law professor Jonathan Turley. “There is nothing to suggest that his motivation was to assist our enemies or a foreign power.”

A more obvious set of charges for the former Booz Allen Hamilton analyst’s leak of secrets from the National Security Agency would include illegal disclosure of classified information and unauthorized removal and retention of classified information, Turley added.

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Bradley Manning, the Army private accused of leaking classified information to WikiLeaks, was charged with “aiding the enemy,” among other charges, but not with treason.

If convicted in his court-martial, now under way in Fort Meade in Maryland — headquarters of the sprawling NSA — he could face life in prison.

There are a number of specific conditions that have to be met for a leaker like Snowden to have committed treason, said John Harrison, a University of Virginia law professor who specializes in constitutional law and history.

“Unless the potential defendant is someone who engaged in hostilities, … the question is whether he adhered to the U.S.’s enemies and gave them aid and comfort, which, in turn, depends on who is an enemy,” Harrison said. If the enemy is considered to be a member of Al Qaeda, it opens up all sorts of other questions about the definition of enemy that are still murky in current law.

Harrison clarified, however, that treason isn’t an impossible charge for Snowden.

“If you think that one, Al Qaeda and similar groups are the enemy for purposes of treason; two, his actions assisted them in operations against the U.S.; and three, that was his intention,” Harrison said, “then the argument that it was treason is pretty good.”

House Speaker John Boehner, for one, called Snowden a “traitor” Tuesday on ABC’s “Good Morning America,” adding that his disclosure of information puts Americans’ lives at risk and violates the law.

And a spokesman did not back down from the Ohio Republican’s wording on Wednesday. “Mr. Snowden bragged about leaking information about a program that helps keep the American people safe,” Michael Steel told POLITICO. “No one has expressed doubt about his guilt.”

Earlier, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) called Snowden’s leak of sensitive intelligence information an “act of treason.”

And asked about it again Wednesday, Feinstein didn’t back down. “I made the comment that I made, and I’m sticking by it,” she said.

Senate Armed Services Committee Chairman Carl Levin, though, took a more measured approach.

“I would use a different part of the code,” the Michigan Democrat told reporters, pointing to the laws against disclosing classified information. “That’s the part of the code I would use if there’s a decision to prosecute.”

Turley suggests the lawmakers haven’t described Snowden with such harsh language by accident.

“There is a clear effort to portray Snowden in the media by senators as a ‘traitor’ or, as [CNN legal analyst] Jeff Toobin calls him, a ‘clown.’ He does not appear to be either,” Turley said. “I was astonished by the immediate effort to discredit Snowden within an hour of his coming forward.”

“Leadership in both parties have an incentive to crush the story and convince the public that they have nothing to fear,” Turley said. “[Snowden] has thrown his life away to make this public. You can disagree with his methods, but the effort to call him a traitor is both legally and factually unsupported.”

In his own defense, Snowden told the South China Morning Post in an interview published Wednesday that he’s “neither a traitor nor hero — I’m an American.”

A sweep of American history is filled with allegations of treason, Harrison noted.

“Aaron Burr was indicted for treason by the Jefferson administration after his adventure in the Southwest, and Jefferson Davis was indicted for treason after the Civil War,” he said. “In the 1790s, some of the participants in [John] Fries’s rebellion were convicted of treason but pardoned.”

But very few people have been indicted for treason since World War II. Adam Gadahn, an American jihadist, was charged with treason in 2006 — the first person to be charged with treason against the United States since the World War II era.

And Gadahn — like Snowden, so far — has not been caught.

Austin Wright and Burgess Everett contributed to this report.