NPR Story
4:15 pm
Tue July 9, 2013

How Founding Fathers Defined 'Traitors' And 'Treason'

Originally published on Tue July 9, 2013 2:46 pm

Members of the press and politicians from opposite sides of the aisle have publicly called Edward Snowden a traitor. Some have even suggested that his actions amount to treason.

But is there a more complicated way to view Snowden and his actions, if you couch them in the history of the founding principles of our republic?

Treason is the only crime defined in the Constitution, and it has a very specific and narrow meaning. Treason consists of levying war or aiding enemies who are levying war, against the United States.

So how have we come to use the words traitor and treason in ways the framers of the Constitution never even intended?

Guest:

  • Jason Opal, professor of American history at McGill University.
Copyright 2013 WBUR-FM. To see more, visit http://www.wbur.org.

Transcript

ROBIN YOUNG, HOST:

It's HERE AND NOW. Edward Snowden, he who exposed government surveillance programs, is still believed to be in a transit area of the Moscow airport. Most reports say he's yet to accept offers of asylum from Bolivia, Nicaragua and Venezuela. But earlier today, a Russian lawmaker with close ties to the Kremlin sent out a tweet saying Snowden had accepted Venezuela's offer. Then the tweet disappeared. The mystery deepened. You might want to check out 'The Two Way" blog at npr.org for the latest on that.

But while there is still confusion about where Snowden is headed, what to call him? His supporters call him a whistle-blower. We already addressed that. The definition is someone who exposes criminal activities, illegal activities. The surveillance programs he exposed are legal, and they're signed off on by a court. So many news organizations like NPR say that doesn't work.

Is he a criminal? He's been charged by the U.S. with three violations, including two under espionage statutes. So is he a traitor? Some people have called him that, lumped him in with Benedict Arnold, the American general who defected to the British during the Revolution; or Julius and Ethel Rosenberg, the couple who gave nuclear secrets to the Russians.

But none of these so-called traitors were ever charged with treason. So what's the relationship between traitor and treason? What constitutes treason? Jason Opal is a professor of American history at McGill University in Canada. Professor, traitor and treason, what's the difference?

JASON OPAL: That's a great question. Traitor is sort of the more not legally binding term for someone who has committed treason. Treason is a more precise criminal act, and it's actually very carefully defined, and it's explicitly limited under the Constitution.

YOUNG: Is it the only crime defined in the Constitution, is that right?

OPAL: That's correct, yes. It's Article 3, Section 3. It's a very important part of the Constitution because it's explicitly reacting to the broad definition of treason employed for a long time by the British states. If I may, I mean, the definition of treason under the U.S. Constitution is someone who is levying war or has levied war against the United States or is materially aiding someone who is. It is not all the other things that the British had long used treason to do.

Under British common law, statutory law and legislative decree, treason can mean anything from sleeping with the wife of the eldest son of the king and thereby interfering in the royal descent. It could mean counterfeiting. And most pertinent, it could mean some association with rioting. And in the Colonies, treason had been used by the royal governors to crush riots.

YOUNG: So these colonists who became the framers of the Constitution, having learned what they didn't want to have treason defined as from the British, defined it as shall consist only in levying war against the United States or in adhering to the United States' enemies, giving them aid and comfort, very specific.

OPAL: Precisely.

YOUNG: Yeah, and so how could that be applied now? It very specifically says it has to be in wartime.

OPAL: That to me is the deeper issue here, the deeper problem, if I may editorialize. War is supposed to be, and I'm saying supposed to as in from the revolutionary inheritance that we still I would think keep alive, it's supposed to be a bad and unusual thing in human events. And that's why it's hard to declare war in the U.S. Constitution.

And what we're seeing I think with Mr. Snowden and more generally is a, in my view, dangerous expansion of the definition of war.

YOUNG: Perpetual war.

OPAL: Perpetual and dangerously undefined war that legitimizes or enables all kinds of activities that are really questionable, either constitutional grounds or on the broader moral, ethical grounds of a republic.

YOUNG: It would seem obvious, but how did the framers envision war? They, you know, had just been through one.

OPAL: Let's just keep it to Madison, who's probably the most important of the architects of the actual Constitution. He made it very clear that war is, for lack of a better term, bad. It's not inevitable. It can be limited. It can be made more unusual. If governments are made more representative of the public good, it's an enlightenment sampling that you can use human reason and human tools to make the human condition better.

YOUNG: And war had a beginning and an end.

OPAL: Yes, that's the crucial thing. It has to be declared by Congress. It has to be funded by Congress every two years. And it ends, and when it does end, the things that happened during war, the legal and moral restraints that are somewhat lucent during war, as they simply have to if you're going to fight a war, and law, as he would put it, is restored.

YOUNG: So you would question if someone wanted to charge Snowden with treason on the grounds that we're in the war on terror.

OPAL: That's correct, and it should be noted, I mean, I think that the U.S. government will not, even if they get their hands on Mr. Snowden, which is unclear, charge him with treason. I think you already have seen Mr. Obama, for example, trying to walk that back a bit. He called a hacker as opposed to a traitor, which has been used by many people in the media and by various officials.

YOUNG: On the right and the left.

OPAL: That's correct. And I'm skeptical not only of the actual legal bearings of charging him with treason, but I think what I'm taking issue here - with here is more the rhetoric of him as being a traitor. That would only be the case if war is the new normal. That would only be the case if war has penetrated or colonized, you know, virtually every facet of our public life.

YOUNG: But what would you say to someone who might say to you but that's the way life is now, there isn't one state. There are actors around the world, and it is an ongoing war, and you only have to point to Boston, for instance, and two young men with pressure cookers following a cleric from Yemen.

OPAL: Oh yeah, I have no illusions about the depravity of a number of people who would like to do maximum harm with Americans, as well as to other countries, who have no problem killing little kids and civilians and anyone else. But the issue is how do you organize the state, organize public life against that.

You could for example, instead of using the word war, you could use the word crime and say it's a massive crime, and it's a massive police effort, and that's by the state but by the society to prevent that crime. War takes away the moral and legal space, social space, to organize public life for other ends.

YOUNG: Well, OK, as we close I'm going to take away the word whistleblower because there are some who believe that Edward Snowden did not reveal information that was illegal so therefore doesn't deserve that title. Let me take away traitor because as you say, in the Constitution it defines traitor and treason as an act during war, and you're not accepting the war on terror as qualifying for that.

What would you call him?

OPAL: I would say he's a fairly ordinary person who has done an extremely risk thing. And when I say he's courageous, I think it's some of I would just because he obviously did something that he must have known was going to cause serious harm to his livelihood and perhaps to his life.

YOUNG: Could he also be brave and those things you've just said but also a criminal?

OPAL: Right. Yes, he could. But I think a good society tries to make those kinds of cases very unusual because you shouldn't have a society where it's illegal to do something that's morally important, or it's illegal to do something that's brave.

YOUNG: Jason Opal, professor of American history at McGill University. He focuses on American intellectual history and moral philosophy, looking at the word traitor, and treason. Professor, thank you.

OPAL: Thank you.

YOUNG: So Jeremy, I think it's probably gotten people listening. You know, what would you call Edward Snowden, especially if you take away the words whistleblower and traitor and go from there? Let us know your thoughts. What is Edward Snowden? Hereandnow.org.

JEREMY HOBSON, HOST:

So many different views all over the country. You speak to people, and some of them think hero, some think traitor. We'd love to hear your thoughts, hereandnow.org. Later in the program, what happened at Barnes & Noble? We'll have that. Latest news is next, HERE AND NOW. Transcript provided by NPR, Copyright NPR.