Senator Ted Cruz is an excellent lawyer with a mature understanding of the Constitution. But he is wrong on treason.
At Thursday night’s presidential debate in Detroit, Senator Cruz reiterated a point he has made earlier: that Edward Snowden likely committed, and should be prosecuted for, treason. That is because, he said, the Constitution defines treason as giving aid and comfort to the enemy. And that, Cruz claims, is what Snowden did.
Close, but incomplete. Article III actually says that treason consists of “adhering to [American] enemies, giving them aid and comfort.” Cruz’s exclusion of the word “adhering” is significant. That is the language that helps to supply the relevant mens rea of treason, which is an intent to betray the United States. The Supreme Court recognized this many years ago in Cramer v. United States.
As I have said and written (here), I have not seen evidence sufficient to prove beyond a reasonable doubt that Snowden adhered to the enemy (or, that he intended to betray the Nation). There certainly is evidence that he has aided an American enemy, but contrary to Cruz’s statement, that aid must be accompanied by adherence to an enemy and the intent to betray. In other words, even if he did something that aided ISIS or al Qaeda (as seems likely), I have not seen evidence that he was adhering to them.
Some have speculated (Donald Trump said this last night) that Snowden was a spy. But for whom? Russia? China? First, espionage and treason are not the same. Second, even if we assume that Snowden was a spy and that he meant to adhere to the country for whom he is spying, in order to be guilty of treason that country would have to be an “enemy.” To my knowledge, neither China nor Russia would be considered “enemies” for purposes of the Treason Clause. We have our issues with them, but would we say they are our “enemies”? I would agree that we need some better research and analysis on who is an “enemy” (I’m working on it), but I have seen no evidence that Snowden adhered to, or was working on behalf of, any nation or group that would fit any sensible constitutional definition of “enemy.”
To be clear, I favor prosecuting Snowden for whatever crimes he has committed. And I favor breathing new life into American treason law, most particularly with respect to those who have joined, fought for, or supported certain terror groups. See my previous post here. But I am not yet persuaded that Snowden’s case is the right vehicle for doing so. If Senator Cruz and others are committed to reviving treason prosecutions, I would start by looking at the citizens who have become fighters for – or otherwise are adherents and aiders of – ISIS or al Qaeda, for whom the Government’s existing strategy is to use the material support statutes.