Can Edward Snowden be Charged with Treason?

The Washington Post columnist Marc A. Thiessen takes an unusual approach to the Edward Snowden espionage case. In “The danger of what Edward Snowden has not revealed,” Thiessen focuses on what the former information analyst has not publicly disclosed about federal information gathering programs. Regarding the computers that Snowden has in his possession, Thiessen argues, “Snowden’s public revelations of classified information may very well be the least damaging thing he has done. By taking top-secret documents out of the country and carrying them first to China and then to Russia, Snowden has aided and abetted the People’s Liberation Army of China (‘PLA”), and the Federal Security Service of Russia (“FSB”) in their espionage efforts against the United States.” According to Thiessen, the PLA and the FSB may end up reaping benefits of which the public may never be aware. Could these disclosures lead to charges of treason?

Several news sources report that Snowden, in his requests for asylum, has cited fear of persecution and the possibility of the death penalty if he is convicted in the United States. The Crimes Act of 1790 made treason a capital crime, punishable by death. Currently Snowden faces three federal criminal violations related to espionage: 1) Theft of government property; 2) Supplying National Defense information to someone without a security clearance; and 3) Revealing classified information about “communications intelligence.” Treason charges could be added if the evidence reveals that Snowden brought “aid and comfort” to United States’ enemies. The term “aid and comfort” refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, such act has been as one of treason.

The alleged leaker was an analyst for government contractor Booz Allen Hamilton. The firm, based in Washington D.C., provides security solutions, analysis, and strategic plans for government agencies and large civilian employers. The vast majority of Booz Allen’s revenue is generated by contracts with the United States government. Outsourcing of security solutions is commonplace in the federal government, which of course, increases the risk of espionage.

Treason is the only offense defined by the Constitution. Prosecutors’ challenge in treason cases is that the Constitution requires either the testimony of two witnesses or a confession by the accused in an open court. Snowden, it is reported, believes his actions have been in the public’s interest, rather than treasonous, so a confession is unlikely. Finding another witnesses who has knowledge of Snowden’s conduct may be a daunting task. Regardless, because of the high profile nature of Snowden’s case, it is anticipated that the most serious charges will be brought, despite the high burden, should Snowden be denied asylum. The recent guilty verdict against Bradley Manning in the WikiLeaks case will likely serve as a guide to the Department of Justice. Manning was convicted in military court on 22 counts of espionage and theft, but was acquitted on the most serious charge of “aiding the enemy.” Manning is still facing up to 136 years in prison. Snowden’s fate will likely be similar, regardless of which charges the Department files.