Rep. Mike Rogers, R-Mich., is the latest lawmaker to make a linguistic blunder when it comes to National Security Agency leaker Edward Snowden. Speaking to reporters Thursday, Rogers made clear for the first time that he thinks Snowden ought to be tried for treason.
"This is a) incredibly damaging, and b) there should be no notion in anyone's mind that this person is [sic] a traitor to the United States of America," said Rogers. "He should be punished to the fullest extent."
Rogers's rhetorical flourish masks a common misconception: Almost nobody gets tried for treason these days, because the legal threshold for it is incredibly high.
As Salon's Alex Seitz-Wald explains:
To make matters worse for those who label Snowden a traitor, treason generally only applies when a suspect colludes with a country against whom the United States has declared war. But Washington hasn’t officially declared war on anyone since World War II. Even during the Cold War, prosecutors did not use the charge against people like CIA agent Aldrich Ames, who sold secrets to the Soviets, because the U.S. was not technically at war with the USSR. In reality, treason has been invoked rarely in history—just 30 times since the founding.
What may be more likely is that Snowden could be tried under the Espionage Act, which President Obama has used to its maximum potential in going after suspected whistle-blowers. Enacted in 1917 by President Wilson, the Espionage Act gave the executive branch tremendous powers to punish government critics. Obama has invoked the Espionage Act six times during his administration to pursue whistle-blowers, even though few of those recent cases actually involved trafficking information to a foreign recipient.
It remains to be seen whether Snowden provided classified information to Hong Kong, where he's said to be hiding. If he did, it would make it that much more likely that Obama would try to apply the Espionage Act. But there are a lot of steps to take before we get there.