2013 06 12 NYT Surveillance – Snowden Doesn’t Rise to Traitor – NYTimes.com
Surveillance: Snowden Doesn’t Rise to Traitor
For several top lawmakers in Washington, Edward Snowden committed the ultimate political crime when he revealed to the world just how broadly and easily the government is collecting phone and Internet records. “He’s a traitor,” said John Boehner, the House speaker. “It’s an act of treason,” said Senator Dianne Feinstein, the chairwoman of the Intelligence Committee.
Among prosecutors and defense lawyers, there’s a name for that kind of hyperbole: overcharging. Whatever his crimes — and he clearly committed some — Mr. Snowden did not commit treason, though the people who have long kept the secrets he revealed are now fulminating with rage.
If Mr. Snowden had really wanted to harm his country, he could have sold the classified documents he stole to a foreign power, say Russia or China or Iran or North Korea. But even that would not constitute treason, which only applies in cases of aiding an enemy with whom the United States is at war.
His harshest critics might argue that by exposing American intelligence practices, he gave aid and comfort to Al Qaeda and its allies, with whom the country remains in a military conflict, thanks to the Authorization for Use of Military Force, which Congress passed after Sept. 11, 2001, and is in force now. It’s unlikely that Qaeda leaders did not already know or suspect surveillance before Mr. Snowden’s disclosures. But treason means more than that, too. In the landmark 1945 case Cramer v. United States, the Supreme Court ruled that one had to provide aid and comfort and also “adhere” to an enemy to be guilty of treason.
“A citizen may take actions which do aid and comfort the enemy,” the court said, “making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.”
Clearly, Mr. Snowden did not join a terror cell, or express any hostility toward the United States, when he turned over documents to The Guardian and The Washington Post. (He was also not nearly as reckless as Bradley Manning, the soldier on trial on charges with giving classified materials to WikiLeaks, who seemed not to know or care what secret documents he was exposing.) Mr. Snowden’s goal was to expose and thus stop the intelligence community from what he considered unwarranted intrusions into the lives of ordinary Americans. “My sole motive,” he told The Guardian, “is to inform the public as to that which is done in their name and that which is done against them.”
While that principle is the right one, he should brace himself for the charges and possible punishment that may come in its wake. Most likely, he will be charged with disclosure of classified information under the Espionage Act, which carries a possible 10-year jail term for each count. Mr. Snowden broke the agreement he made to keep these materials secret. He appeared forthright in confessing to the act and can use his testimony, should he be brought to trial, to make the case that he exposed a serious abuse of power (though, technically, he did not blow the whistle on fraud or criminal activity).
That’s what civil disobedience means: accepting the consequences of one’s actions to make a larger point. Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.