6.13.13. … Edward Snowden: To be or not to be …

Edward Snowden, NSA Scandal, treason, traitor:  Treason and traitor are terms with very limited definitions, as well they should.

There are limits to what you can say about treason law, just because cases are so rare. Fewer than three dozen Americans have been charged with the offense, and none have been since the aftermath of World War II, in which a few citizens  who allegedly helped the Japanese  or German causes. And that includes cases like Cramer’s or that of “Tokyo Rose,” where the defendant was later exonerated.

So there isn’t really a lot of case law about what is and isn’t treason. Kontorovich notes, further, that technological developments have raised questions that our decades-old case law on this is ill-equipped to answer. “What if someone wants to spy for a foreign country?” he writes in an email. “The enemy spymaster tells him, ‘Don’t bother with dead-drops and all these James Bond tricks; just post the information on your blog, which we will be reading, and you’ll be a whistleblower, not a traitor.’”

That, Kontorovich, ought to count as treason, though presumably we’d have to be at war with the country in question. And contra the Supreme Court’s decision in Cramer, he doesn’t even think coordination with the enemy country is strictly necessary. “A reckless disregard could be enough,” he writes. “I’m not saying the law reflects this distinction, I’m just saying it is an open and unsettled area.” But he concedes that this is a broader definition than the conventional understanding. ”‘Leaking’ or “whistleblowing’ is usually seen as distinct from treason because it’s unaccompanied by the particular intention the help the enemy,” he writes.

Of course, Snowden could always be charged under the Espionage Act or another, less sexy law than the treason provision of the Constitution. But if Julius Rosenberg, who almost certainly spied for the Soviets, couldn’t be tried for treason, it’s hard to see how Edward Snowden could be, or why federal prosecutors would want to introduce a charge that would be so difficult to prove.

via No, Edward Snowden probably didn’t commit treason.

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.

via Surveillance – Snowden Doesn’t Rise to Traitor – NYTimes.com.

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