Cruz & Treason

Last night Senator Cruz’s conservatism placed him near a deep constitutional chasm. Moderator Brett Baier began the exchange by asking Mr. Cruz a tough question about Edward Snowden and the unconstitutional government spying program he unveiled.

Senator Cruz, in 2013, you said you were open — you were open to the possibility that Edward Snowden had performed a considerable public service, you said back then, in revealing certain aspects of the NSA procedures. Many of your colleagues in the Senate, including Senator Rubio, called him a traitor. It took you until January of this year to call him a traitor and say he should be tried for treason. Why the change of heart? And why did it take you so long?

An excerpt from candidate Cruz’s response explains his position quite well.

Now, at the same time, I said in that initial statement that if the evidence indicated that Edward Snowden violated the law, he should be prosecuted for violating the law. And, indeed, since then, the evidence is clear that not only does 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.

And Snowden’s comments afterwards, and his behavior afterwards, he fled to Russia, he fled to China. His conducts afterwards indicates that he was not a whistleblower, but instead he was undermining the ability to defend this country.

However, a closer look at the Constitution’s treason clause reveals a complexity that Senator Cruz ignored. The clause in question reads as follows “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Less than a decade after that phrase was written, founder and jurist James Wilson opined that “the expressions ‘giving aid and comfort’ are explanatory of what is meant by adherence.” Does that mean any aid or comfort – regardless of the motivation – is a form of treason? No. If motives were irrelevant to Judge Wilson and the other founders, every observant 18th century Quaker would be required to ignore the plight of cold, hungry enemy soldiers during a raging snow storm. This would defy common sense and undercut religious and social freedom.

Instead, it is reasonable to assume that controversial actions must be understood in their proper context; actions are treasonous if they are motivated by a desire to assist the enemy. If this conceptualization seems unreasonably generous, it is important to note that Mr. Wilson’s examples of “aid and comfort” arguably underscore this understanding.

“To give intelligence to enemies, to send provisions to them, to sell arms to them, treacherously to surrender a fort to them, to cruise in a ship with them against the United States – these are acts of adherence, aid and comfort.”

By all accounts Edward Snowden’s actions were motivated by a laudable desire expose the government’s unconstitutional spying program. He was not initially “adhering to” Russia, China, or any other country or organization. And if we assume for a moment that Mr. Snowden did not trade government secrets for freedom in Russia, Ted Cruz’s assertion is highly questionable. Unfortunately, many experts believe the former government contractor passed along some information to his Russian hosts, and that sadly casts a new light on the situation.

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