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Treacherous Talk

Exactly what is treason, and exactly who is a traitor?

My question is neither academic nor rhetorical. Sen. Dianne Feinstein, D-Calif., who chairs the Senate Intelligence Committee, has already pronounced Edward Snowden guilty of “an act of treason” for disclosing highly classified details of the government’s data-collection efforts. House Speaker John Boehner, R-Ohio, chimed in that Snowden is “a traitor.”

This elevates the definitions of “treason” and “traitor” to matters of pressing public policy. In other circumstances, we might be glad that senior members of both parties have found something to agree upon, but in this case I don’t see much silver in that lining.

The terms “treason” and “traitor” are tossed around far too liberally, often by people who are ignorant, but sometimes - as in the cases of Feinstein and Boehner - by officials who either know better or who should.

Title 18, Section 2381 of the United States Code states: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined not less than $10,000; and shall be incapable of holding any office under the United States.”

Snowden obviously did not engage in warfare against the United States. Feinstein therefore believes, or pretends to believe, that he “adheres to their enemies, giving them aid and comfort.” Which enemies? What sort of aid and comfort?

The United States is not in a state of declared war against anyone. There is a violent yet metaphorical “war on terror,” just as there is an equally violent, metaphorical “war on drugs.” Terrorists and drug lords already knew our government wants to monitor their communications and capture or kill them. I, on the other hand, did not know that the government was gathering data on every phone call and text message I sent until Snowden revealed that information.

Am I an enemy of the United States? Are 310 million of my fellow citizens? I don’t think so. We are the United States.

Wise or foolish though his actions may have been, and however many laws and obligations Snowden violated, he is guilty of only the same conduct that Daniel Ellsberg engaged in when he leaked the Pentagon Papers in 1971. Even the Nixon administration did not claim that Ellsberg had committed treason. Ellsberg was charged with violating the Espionage Act of 1917, and the charges were dismissed when it emerged that Nixon’s “plumbers” (so named for their assignment of stopping leaks) had illegally burglarized the office of Ellsberg’s psychiatrist.

I don’t think Feinstein, Boehner and their fellow members of the congressional leadership really believe Snowden is guilty of treason. I think they urgently want to put as much fear as possible into anyone else who might consider leaking or publishing national secrets.

If Snowden is guilty of treason, then what about the journalists and news organizations that published the information he provided?

Consider Title 18, Section 2382 of the U.S. Code: “Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.”

Under this language, if Snowden had not come forward to identify himself, could journalists who reported his information have been prosecuted for protecting their source? Does anyone care to stake the right to a free press on the prosecutorial discretion of President Obama and Attorney General Eric Holder?

This, too, is not an academic or rhetorical question. Rep. Peter King, R-N.Y., who chairs the House Subcommittee on Counterintelligence and Terrorism, asserted this week that journalists who report on leaks like Snowden should be punished.

Snowden said he acted to educate Americans about the emergence of what he called a “surveillance state.” The fevered reactions by some of the architects of that state support Snowden’s argument that we, not they, should decide the balance between surveillance and privacy, between what is truly a matter of national security and what is an accumulation of data whose ultimate use cannot yet be known - but which is going to be used for something, someday, because knowledge is power, and power is always used eventually.

There was no treason. Snowden, whatever else he may be, is not a traitor. But all this talk of treason is taking us down a treacherous path.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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