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June 12, 2013 9:43 AM Drop the T-Word, Please

By Ed Kilgore

Initial inhibitions notwithstanding, members of Congress from both parties are beginning to whale away at Edward Snowden, as Politico’s Alexander Burns notes this morning:

He is the toast of the libertarian left and the libertarian right. But for most of the political establishment, across the ideological spectrum, it has taken only a few days to conclude that Edward Snowden is nothing less than a dangerous villain.
If any part of Snowden hoped for a Pentagon Papers-style response to his leaks - a round of applause across Washington and New York at the daring revelation of secret national security information - this week certainly shattered any such illusion.

But a moment’s reflection should make it obvious that refusing to call a “whistleblower” like Snowden a hero, or suggesting he should be prosecuted for disregarding the law and violating his own oaths, isn’t the same as accusing him of treason, as at least two important figures, Senate Intelligence Committee chairman Dianne Feinstein and House Speaker John Boehner, have done.

Wonkblog’s Dylan Matthews establishes pretty definitively today why even the most negative construction of Snowden’s behavior falls well outside the definition of “treason,” primarily because the offense, as defined in Article Three, Section Three, of the U.S. Constitution, requires collaboration with an actual wartime enemy of the United States. That’s why there have been no treason prosecutions arising from incidents occurring after World War II.

For all the loose talk of pols and pundits, there’s no way Snowden will be prosecuted for treason, notes a New York Times editorial:

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).

There’s also the possibility, of course, that the U.S. government could reach a plea agreement with Snowden, or even, as many are urging via petition, that he could benefit from some form of executive clemency.

But any way you slice it, he’s no traitor, and if people keep using that term loosely, they might want to address the peculiarly American habit of waging undeclared wars, which makes it very hard to commit treason in any formal sense.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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