Wednesday, June 12, 2013

Edward Snowden: Treason or Not?

There is much talk today about whether Edward Snowden, the man who exposed the NSA electronic surveillance program, is guilty of treason.

As glib, and understandable, as those statements are, only a jury can decide whether he--or, for that matter, Jane Fonda-- is guilty of treason. The best, and fastest, explanation I can give of this is found in an article I wrote several years ago. Bracketed material has been added today.


By now, few people are unaware that Representatives Jim McDermott (D-Wash), Mike Thompson (D-Cal), and David Bonior (D-Mich) recently made a pilgrimage to Saddam Hussein’s Iraq. There, they toured, posed for pictures, and schmoozed with Iraqi officials. And while in Iraq, McDermott made critical comments about the United States and said he’d trust Saddam Hussein before he’d trust his own president, George W. Bush.

Understandably, a firestorm erupted – especially on the political right. Predictably, there have been calls to charge the three Baghdad Boys with treason – analogizing their conduct to Jane Fonda’s during the Vietnam war. However, for the very reasons my co-author [Erika Holzer] and I concluded in our . . . "Aid and Comfort": Jane Fonda in North Vietnam (McFarland & Co.) that Fonda was indictable and convictable for treason, the Baghdad Boys are not.

There are three crimes expressly mentioned in the Constitution, only one of which is actually defined. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy; neither is actually defined. However, Article III, Section 3, provides that: "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."

As explained in "Aid and Comfort"(, the Supreme Court of the United States, has interpreted the treason section to require four elements for indictment and conviction: (1) an intent to betray the United States, (2) an overt act, (3) proved by two witnesses, (4) providing aid and comfort."

In Jane Fonda’s case, she traveled to North Vietnam during hostilities, made broadcasts (tapes of which were relentlessly played to our POWs), held press conferences, provided photo ops for the Communists, attacked the United States and its leaders, exploited American prisoners of war, fraternized with North Vietnamese military and civilian leaders — and was thanked for her efforts by grateful, top level Communist leaders. This is why "Aid and Comfort" concludes that, given the law of treason and given Fonda’s conduct, there was more than sufficient evidence to support an indictment and a conviction for treason.

It is understandable that people are equating what the three Congressmen did in Iraq with what Jane Fonda did in North Vietnam. The parallels are there – up to a point. Fonda traveled to North Vietnam at a time when the United States was actively engaged in hostilities with that country: a large-scale air, ground, and sea conflict. McDermott, Thompson, and Bonior traveled to Iraq at a time when the United States was actively engaged in hostilities with Iraq: an air campaign in the "no-fly" zones. In both situations, one finds the requisite overt acts, no dearth of reliable witnesses, and unequivocal aid and comfort to our enemies in the form of propaganda.

But one essential element of the crime of treason – indisputably present in the Fonda situation, but and lacking in the case of the three Congressmen – is intent.

Only in rare cases can criminal intent be proved through direct evidence (for example, from an admission by the defendant). Because intent is a state of mind, almost always it must be proved indirectly. In the crime of treason, the Supreme Court of the United States has consistently ruled that the requisite element of intent can be inferred from a defendant’s overt acts. In Fonda’s case, a jury could have concluded from all that she said and did that her intent was to betray (i.e., harm) the United States.

Not so with the Baghdad Boys. Taken at face value, their self-serving statements of how they were only trying to help, rather than complicate, the desperate situation the United States now faces, suggests a lack of intent to betray America. They may be stupid, grandstanders, useful idiots, publicity hounds. They may even be part of the phenomenon that’s the subject of our next book (Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service [now in its second edition,,com]) because at least two of them (McDermott and Bonior) claimed they had fought in Vietnam, [so as to sound like patriots], when the truth is that neither one ever left the United States [during that war].

But, legally, they are not traitors.

Our government could not make a treason case stick. As contemptible as their conduct and statements were, the Baghdad Boys are protected by the constitutional guarantee of free speech.
Which is not to imply that those who condemn them as un-American and unworthy of public office are without remedy. Let the last word on these three Congressmen be – not from federal prosecutors – but from their constituents.

Which brings me back to Snowden. As it was with Tokyo Rose and Axis Sally during World War II, Fonda in Vietnam, and now Snowden hiding out in Hong Kong, the touchstone of a successful treason prosecution--under either the Constitution or federal statute--is "intent." A jury found that the two women had it, could have found that Fonda did, and would not have been allowed by a judge to find the Baghdad Boys had the intent to "adhere" to Saddam and give him "aid and comfort."

Based on Snowden's own admissible statements so far, however, a jury could certainly find each one of the treason elements, including intent. Meaning that he, like Hanoi Jane Fonda, is both indictable and convictable of treason against the United States of America.

We'll see whether Obama has the stomach to do what's right.