JURIST Guest Columnist Brice Biggins, George Mason University School of Law Class of 2014, discusses the rarity of treason charges in the US and argues that Edward Snowden should be charged with violating the Espionage Act of 1917…

After leaking the existence of the National Security Agency’s (NSA) PRISM program [PDF] and the collection of communications metadata through the Foreign Intelligence Surveillance Court, Edward Snowden has been called many things. Speaker of the House John Boehner (R-OH) and others have called him a traitor. Wikileaks’ Julian Assange and some members of the press have called him a hero. Rushing to label someone a hero does a great injustice to those whose actions have stood the test of time beyond the fleeting opinions of the instant. Similarly, calling an unconvicted man a traitor does great violence to the presumption of innocence and militates against the intent of the founders of the US Constitution. Instead, it is better to call Snowden what he is; he is a fugitive from justice, charged with violating the Espionage Act of 1917.

While it would be easy to dismiss Boehner’s remark as a misnomer, a more informative path would be to ask in a world of NSA leakers and domestic terrorists, why the crime of treason is not invoked more often. Black’s Law Dictionary defines the word traitor as “a person who commits treason against his or her country.” The crime of treason has the distinction of being the only criminal offense defined within the US Constitution. Article III, Section 3 of the US Constitution defines treason as “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Section 3 also states that a treason conviction requires either the testimony of two witnesses or confession by the accused in open court. Although the evidentiary requirements may not have been so difficult in the past, the growing integration of computers and the continual decline in interpersonal interactions within modern society have made satisfying the witness requirement considerably more difficult.

Irrespective of the evidentiary requirements, historically indictments for treason have been a rarity, numbering somewhere below 40, with convictions even more rare. Of those convicted of treason, most have actively aided an enemy engaged in hostilities with the US. Some of the better known individuals convicted of treason include Benedict Arnold, who sold military intelligence to the British, Mildred Gillars, better known as Axis Sally, who participated in the Nazi’s radio propaganda campaigns aimed at demoralizing American troops, and Herbert Hans Haupt, who was apprehended during a failed sabotage mission on American soil for the Abwehr, a Nazi military intelligence organization.

The rarity of treason charges is made even more clear in light of the fact that since Kawakita v. United States, where the US Supreme Court reviewed the US Court of Appeals for the Ninth Circuit’s treason conviction against Tomoya Kawakita for his involvement in torturing American prisoners of war in Japan during World War II, there has been only one treason indictment. In 2006, based on his giving direct aid and participating in the actions of Al Qaeda, a federal grand jury indicted Adam Yahiye Gadahn for treason, marking the first treason indictment since Kawakita. With the exception of Benedict Arnold, most criminals convicted of treason have not been involved in espionage. It is worth noting that between the time of Kawakita’s crimes and 2006, the judicial landscape was dramatically changed by the Cold War and the increased priority and deference given to secrecy and national security interests.

While crimes that would technically constitute treason are unlikely to disappear, in many instances they now fall under the Espionage Act of 1917, codified under 18 U.S.C. §§ 792-99. The Espionage Act differs from treason in three key ways. First, rather than a broad description the act makes provisions for specific activities such as harboring or concealing persons, disclosure of classified information, and gathering or delivering defense information to aid foreign governments. Second, while many if not all of the charges under the espionage act could potentially fall under the Article III definition of treason, the act does not use the word “enemies,” in its provisions, instead referring to “foreign governments,” or “unauthorized persons.” This textual difference prevents the act from conflicting with the constitutionally defined crime of treason and allows 18 U.S.C. § 798 to punish individuals and groups for disclosing classified information without having to tread into the delicate and highly restrictive realm of treason charges. Additionally, by pursuing charges under the Espionage Act, the government can in some ways limit the defense from challenging the charges on constitutional grounds.

The final and most significant difference between the Espionage Act and treason is that the act does not require two witnesses to the crime or confession in open court. As a practical matter, the requisite burden of proof for treason, two witnesses to the same overt act or confession by the accused in open court, are now more than ever difficult to satisfy. In the case of Edward Snowden or those charged with committing similar offenses, the two-witness requirement has become progressively more problematic. Unlike the Cold War exploits of Oleg Penkovsky or Christopher Boyce, modern espionage tends to be a faceless and solitary endeavor, often involving only an isolated individual and a computer network. Because Snowden’s employment and alleged espionage activities both involved using a computer, even if someone had seen him copying the files, they probably would not have realized what they were witnessing without viewing his screen at the same time he was using it.

Another feature of the modern legal landscape worth noting is the Classified Information Procedures Act (CIPA), codified under 18 U.S.C. App. I, §§ 1-16. CIPA was enacted in 1980, at the height of the Cold War, to help balance the defendant’s rights under the Sixth Amendment and the government’s need to control the flow of classified information during criminal trials. Of the provisions under CIPA, sections 3-6 are of particular importance. 18 U.S.C. § 3 allows the government to issue protective orders that bar the disclosure of any classified information an order is applied to. 18 U.S.C. § 4 allows the court to authorize the government “upon a sufficient showing” to remove classified items from the documents discoverable by the defendant under the standard Federal Rules of Criminal Procedure. In a similar vein, 18 U.S.C. § 6(c) allows the government to substitute either a summary of the document or a list of the relevant facts for the original classified material.

Finally 18 U.S.C. § 5 requires that defendants who expect to disclose or cause the disclosure of classified information during the course of their trial notify the attorney for the US at least 30 days prior to trial unless otherwise specified. The primary purpose for this requirement is to prevent the defendant from manipulating the proceedings by threatening to reveal classified information, a practice known as graymail. Because CIPA requires that the defense disclose any potential classified information that might come into play to the prosecution, the defense is prevented from taking advantage of the trial to leak further secrets.

Another effect of this provision is that it potentially bars confessions outside of a simple guilty plea, essentially placing an additional restriction on the charge of treason. CIPA also enables the government to restrict what witnesses may testify about. A related judicial doctrine, the so called silent witness rule, allows the court to order the use of a code-words listed on a code-key, which is only available to the trial participants and not the public, to refer to documents, names, or other classified information during the trial.

The end result of CIPA and the silent witness rule is that the judicial focus has shifted from open and public judicial proceedings for crimes that previously may have been considered treason, to a more closed approach. This shift reflects both the changes in society that make producing witnesses more difficult and the government’s explicit interest in information control for crimes relating to espionage. Given this, is Edward Snowden a traitor? If he is, the government seems disinclined to provide the courts with the evidence to prove it, instead casting him into the motley crew of today’s spies.

Brice Biggins is an Articles Editor of the National Security Law Journal at George Mason University School of Law. His experience includes positions with LeClairRyan, the Intellectual Property Law Society, and the Alternative Dispute Resolution Society. He also won the 3rd Best Brief Nationally at the Saul Lefkowitz Moot Court Competition in Spring 2013.

Suggested citation: Brice Biggins, Cyberspace, Espionage and the Fall of Treason, JURIST – Dateline, July 17, 2013, http://jurist.org/dateline/2013/07/brice-biggins-national-security.php.