Ethel walked calmly into the room. A foul, singed odour lingered in the air. She took a seat at the front of the audience, ignoring the damp outline which marked her newly deceased husband.
Minutes later, the diminutive woman strained wildly at her leather cuffs as electricity coursed through her body. Not quite dead, the warden tried again. And again. Finally, smoke billowing from her limp head, the prison staff let the corpse down. So passed Julius and Ethel Rosenberg – proud parents of two, and atomic spies.
The Rosenberg case exemplified the McCarthy-era predilection for hyperbole. The prosecution and media called them traitors. The trial judge agreed, attributing the casualties of the Korean War to their “treason”. But the couple were not convicted of treason. They were convicted of espionage: spiriting nuclear designs to the Soviet Union – a wartime ally – during the 1940s. The distinction is important.
History forgotten is inevitably repeated. Chelsea Manning was convicted in July under the Espionage Act. Like the Rosenbergs, her prosecutors clutched at hypothetical straws to prove that her leaks cost American lives. The United States federal government is investigating Edward Snowden for similar offences. The Attorney-General argues that he is a wolf in Dilbert’s clothing.
Manning, however, was acquitted of “aiding the enemy”, and Snowden is unlikely to attract the same charge.
Yet both have been attainted for treason in the court of public opinion. Politicians from House Speaker John Boehner to former Vice President Dick Cheney denounced the pair as traitors. One Congressman anonymously edited Snowden’s Wikipedia page to read “traitor” rather than “dissident”. And Democratic senators like Dianne Feinstein joined the chorus of hawks, eager to prove their national security credentials.
The Wikileaks-cum-NSA disclosures have been followed by wave upon wave of revisionism and counter-revisionism as pundits indulge that quintessentially American pastime of ‘Traitor or Hero’? Dealing only in extremes, they overlook some important subtleties: Manning and Snowden are not traitors as a matter of law, or as a matter of fact. Treason should not feature at all in the rhetorical melting pot.
It is the sole crime outlined in the US Constitution. Treason, wrote the Founding Fathers, can only consist of levying war against the US, or aiding and “adhering” to its enemies. They took a restrictive interpretation to avoid the abusive, incoherent and politicised treason law of the United Kingdom. There, for instance, it is still treason to sleep with the wife of a king. Until 1998, that was punishable by death. In New South Wales, it is treason to merely “compass or imagine” dethroning the Sovereign.
So it is difficult to charge an American with treason. There have been fewer than forty prosecutions, and a mere handful of convictions. But that is precisely the point. Jefferson et al. understood what the modern statesman does not: treason is a crime apart, not a loose epithet or political football. The penalties and stigma which accompany it should be reserved for those who not only betray their country, they wrote, but who intend to do it real harm.
Manning and Snowden hardly intended to materially injure the US or its armed forces. They were certainly reckless. Manning released files as indiscriminately as, well, an Apache helicopter firing at children and Reuters reporters. Yet she is no Tokyo Rose, Lord Haw-Haw or Anwar Al-Awlaki. A reckless traitor is not really a traitor.
But there is a more important point to be made. As Snowden’s father Lonnie explained, “Edward… has betrayed his government. But I don’t believe that he’s betrayed the people of the United States.” The same could apply to Manning, who wrote to President Obama that “I only wanted to help people… out of a love for my country”. Like Snowden, she abused the trust placed in her by the government. She sought to embarrass that government and bring its agencies into disrepute. And yet, like Snowden, she meant to improve rather than diminish the quality of American governance.
The US made it very clear in 1776 that the government is not synonymous with the People. It follows that a betrayal of government is not necessarily a betrayal of the nation. Contaminating ordinary criminal proceedings with the rhetoric of treason exposes undeserving citizens to gratuitously cruel punishments. Manning’s 35-year sentence, for instance, is longer than that given to a US soldier paid by Iraq to spy on American forces during the Gulf War. Ethel Rosenberg merely typed her husband’s notes.
Do remember the Rosenbergs and their 1953 execution. The casual conflation of “traitor” with “spy” or “criminal” is not a problem unique to the digital age. It is the product of a combustible political atmosphere, and a nation that has ceded its insistence on transparency to the rapacious demands of national security.
Deception, bad faith and espionage are not the legal or moral equivalent of treason. Nor should it be lazily invoked to intimidate public servants or legitimate whistleblowers. A charge of treason against Manning and Snowden can only be sustained by legal gymnastics and a pigheaded insistence on deterrence at the expense of justice.