It takes a special kind of person to be detested—and denounced as a traitor—by both Democratic United States Senator Dianne Feinstein of California and Republican United States Senator Ted Cruz of Texas, two senators who disagree about most issues of public policy. But Edward Snowden managed to create what few thought possible—a genuine moment of bipartisanship.
When Snowden’s famous (or infamous) leak of mounds of American intelligence secrets to journalists became public in 2013, charges of treason echoed across the political spectrum. Senator Feinstein claimed, “I don’t look at this as being a whistleblower. I think it’s an act of treason.” The Republican Speaker of the House John Boehner called Snowden “a traitor.”1 And in the March 3, 2016, Republican presidential primary debate, Senator Cruz, a graduate of Harvard Law School and a former law clerk to Chief Justice William Rehnquist, laid out the legal case: “The evidence is clear,” Cruz asserted, “that not only [did] Snowden violate the law, but it appears he committed treason. Treason is defined under the Constitution as giving aid and comfort to the enemies of America, and what Snowden did made it easier for terrorists to avoid detection.”2
Snowden’s actions were enormously harmful to the United States and were clearly illegal under federal law. But did Snowden commit treason? For purposes of argument, we can assume that Snowden’s actions made it easier for Al-Qaeda and the Taliban—who are enemies of the United States3—to commit acts of terror against us. Snowden, however, has insisted that he released the documents to expose illegal governmental activities and that he had no intention of aiding terrorist enemies.
The Snowden situation has parallels with other public controversies. In October 2019, Donald Trump ordered U.S. troops to abandon our Kurdish allies in Syria, an action that almost certainly helped ISIL, an enemy of the United States. Numerous ISIL fighters escaped from Kurdish custody and are now free to commit serious harm.4 Trump has insisted, however, that he had no intention of helping ISIL, and that his actions were designed to help Turkey, a NATO ally, and to benefit the United States more generally by extricating us from decades of Middle Eastern infighting.
Or consider an earlier example from the Vietnam War. Famed American actress Jane Fonda, while on a visit to Hanoi, the capital of North Vietnam, impulsively posed for a photograph astride an anti-aircraft gun. The photograph had significant propaganda value for the North Vietnamese, with whom the United States was at war at the time. Shortly after the visit, Fonda was denounced as a traitor by several members of Congress, and the charge has never entirely disappeared. For her part, Fonda has insisted that she posed for the picture impulsively, not quite realizing what she was doing, and had not done so with any intent to betray the United States.5 As Fonda has recently explained, “I made a huge, huge mistake that made a lot of people think I was against the soldiers.”6 In her autobiography, Fonda claims that this photograph was her “only regret” about her trip to North Vietnam.7
These examples bring us to one of the most difficult issues in treason law: What is the role of intent? Is every act that might potentially aid the enemy treasonous, even if the actor had no intent to betray the country? Is it possible to commit treason inadvertently? The issue has arisen primarily in the context of aiding the enemy, so this chapter focuses on those cases, although it is relevant to levying war cases as well.
We can begin with some basic principles of criminal law.8 To commit a crime, a person must not only commit a particular act (what lawyers call actus reus), she must also have the requisite mental state (what lawyers call mens rea). A simple example explains why. It is a crime to remove merchandise from a store without paying for it. But suppose someone slips a candy bar from the store into your purse when you aren’t looking? If you walk out of the store, you haven’t committed a crime, even though you technically removed merchandise from the store without paying for it. Why not? Because you had no intent to steal.
The Model Penal Code, developed by the American Law Institute in 1962 to help standardize American criminal law, describes the four different mental states typically recognized by courts and legislatures. A person acts purposefully if he acts with the purpose of creating a particular result. He acts knowingly if he acts with the knowledge that a particular result will occur. He acts recklessly if he consciously disregards a substantial and unjustifiable risk that the result will occur. Finally, he acts negligently if he fails to adhere to the standards of conduct that a reasonable person would observe and he should have been aware that there was a substantial and unjustifiable risk that the result would occur.
To see how these mental states differ, consider some examples of gun crimes. A person acts purposefully if he fires a gun deliberately at another person with the intent to kill him. A person acts knowingly if he fires a loaded gun at another person simply because he wanted to hear the sound of gunfire. Although he didn’t have a specific intent to kill, he nonetheless did something that he knew would kill or harm another person. By contrast, if a person fires a gun at another person under the mistaken apprehension that it was not loaded, we would say he acted recklessly, because he disregarded a substantial risk that a death would ensue. And he acts negligently if he accidentally leaves a loaded gun in an unlocked car, and someone then breaks into the car and uses the gun to commit a crime. Determining the relevant mental state is critical for determining the appropriate level of criminal responsibility. Purposeful crimes are punished far more severely than crimes of negligence.
The Model Penal Code was developed after the most recent treason decisions, but it is nonetheless useful for thinking about intent. The easiest case is that of a person who purposefully intends to aid the enemy. Such a person has clearly committed treason. Similarly, the decided cases make clear that merely reckless or negligent conduct cannot rise to the level of treason.9 The hardest question is presented by a person who acts with the knowledge that his actions will aid the enemy, but without a specific purpose to do so. At least one court has found that a person who “knew, or with his knowledge had reason to know that the natural consequence of his act would be that aid and comfort would result to the enemy” had the sufficient intent to commit treason.10 On the other hand, there is language in other cases suggesting that mere knowledge might be insufficient.11 This point has yet to be conclusively resolved.
Under the Supreme Court’s decision in the 1945 case of Cramer v. United States, a “defendant must not only intend the act, but he must intend to betray the country by means of the act.”12 The Court observed that there are many actions that technically provide aid and comfort to the enemy, such as “making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and minimize our strength.” Yet “if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.”13 That is, under Cramer one must both give aid and comfort to the enemy and do so with the intent of betraying the United States. Assuming there is legally sufficient evidence, a defendant’s intent is a question of fact to be determined by a jury.
Several cases from the World War II era show this distinction at work. Hans Max Haupt, a naturalized United States citizen living in Chicago, was the father of one of the saboteurs sent to the United States by the Nazi government in 1942. When his son arrived in Chicago, Haupt provided him shelter and helped him acquire a job and an automobile. The defense argued that Haupt did so not to aid the Nazi cause, but simply out of the ordinary concern a father has for a son. The prosecution, by contrast, argued that Haupt was aware that his son was a Nazi agent and that his actions were intended to further the saboteurs’ plot. The judge instructed the jury that if the father had acted only to help his son, he “must be found not guilty.” But if he had intended to assist Germany or harm the United States, he was guilty. The jury convicted Haupt, and the United States Supreme Court affirmed his conviction by an 8–1 vote.14
In another case, three Japanese-American sisters were charged with treason for aiding two German POWs who had escaped from a Colorado POW camp.15 The prosecution argued that the women had a traitorous intent because they knew that the men were German POWs. The defense, by contrast, argued that the women had simply acted foolishly, out of love for two men who had swayed their hearts. The jury found the women not guilty of the treason charge, but guilty on a charge of conspiracy to commit treason. The trial judge stated, “After listening to all the evidence, I did not believe the defendants had any intent to harm the United States or help the German government.”16 Accordingly, they could not be guilty of treason.
In a case from Michigan, Max Stephan was indicted for assisting Peter Krug, a German army officer who had escaped from a Canadian POW camp. Stephan was charged with providing supplies to Krug and arranging transportation for him to Chicago. The trial court charged the jury that it had to find beyond a reasonable doubt that the defendant’s “intent and purpose in acting as he did was evil.” If his “intent in doing what he did on the 18th and 19th days of April, 1942, was not in any way to injure this country’s interest or to aid the government of Germany but merely to assist Peter Krug as an individual, the defendant must be found not guilty.”17 The jury convicted Stephan, and the conviction was upheld on appeal.18
Older decisions contained the same general distinction. A federal court in World War I pointed out that a person “under the domination of folly or of factional feeling or directed by a perverted view of what he is doing, or even a wrong-headed conscience” might commit acts that would otherwise be treasonous, but if the acts were done “without traitorous purpose or intent,” they were not treason. “Such a man,” the court stated, “plays the part of the traitor, but is not a traitor at heart.”19 Several centuries earlier, the English jurist Sir Matthew Hale noted that an officer who turned over a royal castle to the enemy was a traitor if he did so to aid the enemy or for a bribe. But if he did it because of “cowardice or imprudence without any treachery,” it was not treason.20
It is also important to distinguish intent from motive. A defendant cannot claim, for example, that his underlying motive was to help the United States, as some defendants have claimed. A federal appellate court has explained it this way: a person who obtained American military plans during World War II and passed them to the enemy could not escape conviction for treason by arguing that “he sincerely believed his country was on the wrong side of the war” and that the country would be best served by a devastating military defeat, leading to a withdrawal from the war. It is no defense that “one acted from patriotic motives upon the sincere conviction that what he did was for the best interests of the United States.”21 Or, as the trial court in the same case explained, “Motive cannot negative an intent to betray, if you find the defendant had such an intent. Where a person has an intent to bring about a result which the law seeks to prevent, his motive is immaterial.”22 Thus, a person who sold military secrets to the enemy, for example, could not claim that his intent was only personal financial benefit. His motive might have been to make money, but he clearly intended to betray the United States in doing so.
To summarize: To be guilty of adhering to the enemy, giving them aid and comfort, a person must intend to betray the United States, either by acting with the purpose of giving aid and comfort to the enemy, or, possibly, at least with the knowledge that she is giving aid and comfort to the enemy. However, if the person acts solely because of some private consideration, such as aiding a particular individual because of a familial or romantic relationship, she lacks the requisite criminal intent. It is not a defense, however, to argue that one’s underlying motives were patriotic and that one had the best interests of the United States at heart.
With these principles in mind, we can return to the cases of Edward Snowden, Donald Trump, and Jane Fonda. If Snowden had directly turned the material over to Al-Qaeda, there would be a strong case for treason. In so doing, he either intended, or had obvious reason to know, that he was giving aid and comfort to an enemy of the United States. Similarly, if Al-Qaeda had asked Snowden to leak information to a particular media outlet, the subsequent leak could be treasonous. But there doesn’t appear to be any evidence that Snowden had prior contact with Al-Qaeda, nor any evidence that he intended to betray the United States or to help its enemies. By all accounts, he appears to be a naive person who honestly thought that he was doing his country a favor by leaking the information that he did. The simple reality is that government employees leak confidential material to media outlets all the time. Admittedly, most leaks are not on the scale of Snowden’s, but leaking alone is not an act of treason.
Donald Trump’s actions in Syria are as close as he has come to committing outright treason. Unlike his alleged conduct with respect to Russia, his actions in Syria benefited a group that is an enemy of the United States for purposes of the Treason Clause. If Trump acted with the deliberate intent to aid ISIL, his betrayal of the Kurds would amount to treason. But no publicly available evidence suggests any such intent. Trump’s actions created a risk that ISIL prisoners might escape, but that was an entirely incidental consequence of his other policy goals. Under these circumstances, it would be almost impossible to establish that Trump had the necessary criminal intent of aiding the enemy.
Similarly, Jane Fonda had a strong defense to any treason charge based on her posing with a North Vietnamese anti-aircraft gun. A prosecutor would have to prove that Fonda posed for the photograph with the intent to betray the United States. Since the circumstances suggest that the photograph was almost entirely inadvertent, no reasonable prosecutor would use it as the basis for a treason charge.
Readers of a certain age will no doubt recall that the controversy over Jane Fonda in North Vietnam was about more than the photograph. Although not directly related to the issue of treasonous intent, the full scope of her activities is worth addressing here, for the simple reason that, until recent times, it has been the most high-profile dispute over the meaning of treason. Fonda’s critics believe that the woman they call “Hanoi Jane” has managed to evade criminal responsibility for what they see as clear acts of treason.
During the two weeks Fonda was in North Vietnam, she engaged in six live radio broadcasts on Radio Hanoi for the North Vietnamese and recorded six more for later broadcast. All of them were specifically directed to members of the United States armed forces serving in Vietnam. Throughout the broadcasts, Fonda extensively criticized American tactics in the war, praised the people of North Vietnam, and argued that the American people did not support the war.23 She also made statements encouraging the soldiers to stop fighting, such as the following:
This is Jane Fonda in Hanoi. I’m speaking to the men in the cockpits of the Phantoms, in the B-52’s, in the F-4’s; those of you are who still here fighting the war, in the air, on the ground; the guys in the Anglico Corps, on the 7th Fleet, the Constellation, the Coral Sea, the Hancock, Ticonderoga, the Kitty Hawk, the Enterprise. . . . All of you . . . know the lies . . . Knowing who was doing the lying, should you then allow these same people and same liars to define for you who your enemy is? Shouldn’t we then, shouldn’t we all examine the reasons that have been given to us to justify the murder that you are being paid to commit? If they told you the truth, you wouldn’t fight, you wouldn’t kill. You were not born and bred up by your mothers to be killers.24
Although Fonda never directly encouraged soldiers to desert, as some accounts later claimed, she did urge them to put down their weapons. In this respect, Fonda’s broadcasts bear similarities to those that led to the convictions in the World War II radio cases. Like those defendants, she was broadcasting on behalf of the enemy, from the enemy’s capital, in time of war, and broadcasting propaganda that was potentially helpful to the enemy. Indeed, the above statement alone is more pointed than anything the government was able to prove against Iva Toguri.
Of course, everything Fonda said would be fully protected under the First Amendment if she had simply recorded these sentiments in the United States. It is also true that she honestly believed, and history bears her out on this, that the Vietnam War was a costly mistake, and that the sooner it was over, the better for everyone, including the United States. Fonda’s intent was not to harm members of the American military—quite the opposite: she wanted the war over so that fewer of them would be killed. As she later put it, “I just want us out.”25 And there is language in some of the intent cases that suggests Fonda did not have the requisite intent to betray. But the World War II cases would have posed a substantial obstacle, as they rejected both the First Amendment and patriotic motives as defenses to a charge of broadcasting on behalf of the enemy.26
The Nixon administration was thus confronted with the formidable question of whether to indict Jane Fonda—one of the most famous women in the world—for treason against the United States. President Nixon, who detested Hollywood liberals and antiwar protestors, probably would have relished the thought of Jane Fonda behind bars. Although Fonda could have argued that the World War II broadcasting cases were different, it is likely that none of these arguments would have persuaded a court.
First, Fonda could have argued that the North Vietnamese were not an enemy, because there was no formal declaration of war. No American judicial decision had directly addressed that question, but, as explained in chapter 10, the English treatises and statements in other cases by American judges strongly suggested that a formal declaration of war was not necessary. Second, Fonda could have argued that she was in North Vietnam for only a few weeks, whereas the World War II defendants had all broadcast over a period of years. But Iva Toguri and Mildred Gillars had been convicted on the basis of one broadcast alone, so duration is not a necessary element of the offense. Third, Fonda could have pointed out that the World War II broadcasters were paid by the enemy, whereas she was not. But donating one’s services provides even more benefit to the enemy than selling one’s services. And the offense is giving aid and comfort to the enemy, not receiving it.
So why didn’t the Nixon administration prosecute a case that, on the surface, at least, seemed potentially winnable? Nixon’s attorney general, Richard Kleindienst, later asserted that the “damage was slight and the interest in favor of free expression was very high. . . . I thought the interests in favor of free speech in an election year far outweighed any specific advantage of prosecuting a young girl like that who was in Vietnam acting rather foolish.”27
In this statement, Kleindienst advanced at least three separate arguments for refusing to prosecute. First, and weakest, is the condescending argument that Fonda was merely a “young girl.” She was in fact thirty-four years old, older than most of the soldiers serving in Vietnam, older than Thomas Jefferson was when he drafted the Declaration of Independence, and only a few months away from constitutional eligibility to be president of the United States. Second, and somewhat stronger, is the argument that there were significant interests in free speech. Although the World War II cases rejected any free speech defense for propaganda broadcasters, the executive branch was free to interpret the First Amendment more broadly. Third, and perhaps strongest, is the lack of any real damage from Fonda’s broadcasts. At the time of Fonda’s visit, almost all U.S. combat troops had been removed from South Vietnam. Moreover, it seems that few of the remaining personnel even heard the broadcasts, given that the U.S. and South Vietnamese regularly jammed the Radio Hanoi signal. Perhaps most damning of all, the U.S. military itself reprinted many of her comments in the publication Stars and Stripes (a magazine for members of the armed forces), a tacit admission that the broadcasts were not dangerous propaganda.28
But Kleindienst probably wasn’t being completely candid. There were at least four other reasons—some too awkward to publicly admit—to reject a prosecution of Fonda.
First, at least forty-nine Americans had made broadcasts from North Vietnam between 1965 and 1972, including prominent figures such as Stokely Carmichael, Noam Chomsky, and Eldridge Cleaver.29 Several of these Americans had made statements far more inflammatory than anything uttered by Fonda, including a Methodist minister who urged black soldiers to join the North Vietnamese.30 The government’s consistent failure to prosecute these individuals amounted to a tacit admission that this behavior was permissible.31 To suddenly indict Jane Fonda for what many others had done would invite serious scrutiny as to why her case was being treated differently. This concern would have been heightened significantly when, just a few weeks after Fonda’s broadcasts, former U.S. attorney general Ramsey Clark (the son of former U.S. attorney general and Supreme Court Justice Tom Clark, who had initiated the treason prosecution against Iva Toguri) also broadcast from Radio Hanoi criticizing American bombing policies.32 It would have been quite difficult to justify prosecuting Fonda without also prosecuting Clark, and the Nixon administration had no desire to indict a former attorney general of the United States.
Second, the trial would have been a media sensation, with Fonda’s defense effectively putting the entire Vietnam War on trial. Just as Jefferson Davis’s trial threatened to raise the issue of the legality of secession, Fonda’s trial would raise, as vividly as possible, the legitimacy of the Vietnam War. Shortly after her return from North Vietnam, Fonda stated that the real “treason” was being committed by those waging “a war of aggression.” The “real patriots” were “those who are doing all they can to end the war.”33 These sentiments would have reverberated through any trial.
Third, and perhaps most important, there was almost no possibility of the government obtaining a conviction. Only one juror sympathetic to the antiwar cause could force a mistrial. Federal prosecutors are notoriously risk averse and tend to bring only cases they are confident they can win. No prosecutor would have any confidence in his or her ability to convict an international superstar on a charge of treason with respect to a deeply unpopular war in the politically charged environment of the early 1970s.
Finally, it might be noted that the Nixon administration had ample reason to be hesitant about raising treason charges over Vietnam. On October 22, 1968, Nixon had ordered an aide to try to sabotage President Johnson’s peace initiative. Nixon feared that peace in Vietnam would undermine his presidential campaign. When President Lyndon Johnson found out about Nixon’s activities, he privately denounced them as “treason” in a phone call with Everett Dirksen, the Republican leader in the Senate.34 A prosecution of Fonda risked exposing Nixon’s own activities with respect to Vietnam, which were hardly honorable. All of these reasons suggested that even if Fonda had technically committed treason, a prosecution would have blown up in the administration’s face. As a practical matter, Fonda could never have been convicted, and it would have been foolish for any prosecutor to have tried.
Treason indictments used to contain florid language about the motivation of traitors, who were typically described as “moved and seduced by the instigation of the devil.” We no longer do this, but motivation remains a fundamental element of the crime. For many crimes, motivation is largely irrelevant—a person is guilty of speeding, for example, even if she didn’t see the lower speed limit sign. But treason is different. It requires an intent to betray the country. As a federal appellate court put it in 1920, “Intent minus act is not treason, any more than act minus intent is.”35 There are no inadvertent traitors. And that’s a good thing—no one should be convicted of the highest crime known to the law unless he or she truly and thoroughly deserves it.