Treason And The Wikileaks Case

There's been much talk recently about treason charges in the Wikileaks case, an most of it has been entirely wrong.

There’s been much discussion over the past two weeks about possible criminal charges in the Wikileaks affair, and as is usually the case when legal matters are discussed in public, most of it has been wrong. The most egregious recent example came when Senator Joe Lieberman was asked about the case on Fox News and claimed to be confused as to why Julian Assange had not been charged with treason:

Fox News: “What to you think of the Justice Department’s action so far in not to charge Julian Assange with treason?”

Senator Lieberman: “Aaah, I don’t understand why that hasn’t happened yet. I mean, we can go back to the earlier dump of classified documents, mostly related to the war in Iraq and Afghanistan. It occurred in July and to me that was a violation of the espionage as well.”

Treason is unique in American law because it is the only crime that is specifically defined in the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Congress has also passed a specific treason statute that adds additional requirements to those set forth in the Constitution:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

First of all, that statute answer Lieberman’s question about Assange. Julian Assange has not been charged with treason, because he cannot be charge with treason. As a citizen of Australia who travels throughout Europe, Assange is not a person “owing allegiance to the United States.” Bradley Manning, of course, is a citizen in addition to being a member of the military, but prosecuting him for treason successfully would be very, very difficult:

One must commit one of two acts in order to be guilty of treason against America — one must either levy war or one must adhere to an enemy, giving him aid and comfort. So seriously did the Founders take the crime of treason that they also laid down special hurdles for convicting someone of treason.

They established that conviction for treason can be made only on the testimony of two witnesses. The witnesses must testify to the actual act of treason. And the two witnesses must have witnessed the same act. And it can’t be any act. It has to be an overt act. And just to mark the point, an American court can’t convict someone on the basis of a confession made to, say, the police or in a signed written document sent to a judge. A confession of treason has to be made in court. And it can’t be done, say, in a judge’s chambers or a secret session. It has to be open court.

All that is in the Constitution. It turns out that America’s founding document leaves the Congress and the Courts almost no wiggle room in defining treason. The Founders just didn’t trust the Congress, and to listen to Senator Lieberman, one can understand why.

In Manning’s case, it strikes me that it would be very difficult to prove the offense of treason in the manner that the Constitution requires. It seems fairly clear that Manning acted alone and covertly when he retrieved the documents that were ultimately turned over to Wikileaks. We’ve all heard by now how he supposedly transferred files to a DVD-ROM which he had altered to make it look like a Lady Gaga CD. Presumably, nobody actually saw him do anything at all and unless there are two witnesses who witnessed him commit an overt act. For that reason alone, a treason prosecution would be likely to fail.

It’s far more likely that Manning, and possibly Assange, will be charged under the Espionage Act. While a prosecution for espionage is not an easy task either, it doesn’t have the same Constitutional limitations as a treason charge would. So, no, neither Julian Assange nor Bradley Manning are going to be convicted of treason, even if they are likely to see the inside of a Federal courtroom at some point in the near future.

FILED UNDER: Intelligence, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Austin says:

    First, I don’t buy that Manning is the only one providing the documents. I have no proof of course, but I don’t buy it. There is too much info ranging across too may departments.

    I fully support charging, trying, and convicting, if guilty, all American citizens involved. If he (they) had security clearance(s), they broke the law.

    Assange is not an American citizen, how can he be protected by the First Amendment or tried for treason? What legal jurisdiction does the federal government have over this guy or his website? Am I missing something?

    I agree w/the assessment, very had to prove and convict. Even if its not treason, the guilty may never see the light of day again anyway.

  2. rodney dill says:

    I think people have been way to anal about other’s use of the word ‘treason.’ While in court or in formal charges it would be necessary to be cognizant of the correct crime and definition, in more common usage ‘Treason’ is being coined as egregious crimes against the US.

  3. george says:

    “I think people have been way to anal about other’s use of the word ‘treason.’ While in court or in formal charges it would be necessary to be cognizant of the correct crime and definition, in more common usage ‘Treason’ is being coined as egregious crimes against the US.”

    But even in common usage, its bizarre to charge a citizen of country A for actions taken against country B. How often do you hear that German soldiers during WW2 were committing treason by fighting against the US?

  4. george says:

    Make that, “its bizarre to charge a citizen of country A with treason for their actions against country B”.

    I’ve never heard of this ‘common’ usage before.

  5. DC Loser says:

    It’s the GOP conspiracy to institute a One World Government.

  6. John425 says:

    Assange is guilty of espionage and Manning is a traitor. If you think the release of these cables and documents does not give aid and comfort to America’s enemies, then I have a bridge I’d like to sell you. Manning gets a military tribunal, “drumhead” justice and a bullet. Assange is an asswipe and a couple of decades in Gitmo ought to sober him up.

  7. michael reynolds says:

    I think the only crime Assange is guilty of is egregious douchebaggery.

    As I mentioned on an earlier occasion, if we’re going to start prosecuting douche bags it will mean a huge increase in law enforcement costs. Not to mention the complete destruction of the reality TV business.

  8. I think you are interpreting the word witness a little too stringently in the case of Manning. It may be possible for someone to accurately attest to the commission of his alleged crime by reviewing audit logs. Witnessing does not necessarily mean you have to be in their physical presence.

    Regardless, Assange and Manning, and most likely others connected to Wikileaks, are conducting espionage against the US, duing an active war. The penalties for this are rather severe.

  9. Alex Knapp says:

    Assange is guilty of espionage and Manning is a traitor. If you think the release of these cables and documents does not give aid and comfort to America’s enemies

    How do they “give aid and comfort” exactly?

  10. mantis says:

    How do they “give aid and comfort” exactly?

    They can print them out and make a nice soft bed from the crumpled up paper?

  11. george says:

    “Regardless, Assange and Manning, and most likely others connected to Wikileaks, are conducting espionage against the US, duing an active war. The penalties for this are rather severe.”

    Manning arguably conducted espionage. Assange conducted espionage if he recruited Manning. However, if Manning sent Assange the material without being solicited, then Assange didn’t do anything a thousand foreign statesmen haven’t done over the millennia – used unsolicited material sent to him by an unhappy foreigner to further his own goals.

    Note that Assange, being a foreigner, was no more under any obligation to keep American secrets than any American citizen would be obliged to keep secret something sent to him or her by some Chinese dissident that the Chinese gov’t wanted kept secret. The Chinese gov’t wanted to keep the events of Tienamen square secret. Were Americans who published reports sent out of China (against the wishes of the Chinese gov’t) conducting espionage, or just being opportunists?

    As Reynolds says, Assange is merely guilty of being a douchebag.

  12. Thus, as opposed to espousing a philosophy of radical transparency, Assange is not “about letting sunlight into the room so much as about throwing grit in the machine.”

    http://www.technologyreview.com/computing/26875/?p1=A2&a=f

    You can find out just how “innocent” Assange is by following the links if you like. I still put him in the class of people who just want to see the world burn, to borrow a line from Alfred.

  13. Just curious Alex, but do you ignore the little disclaimars and warnings put on their e-mails about information being private and not to be used if it wasn’t intended for you, etc.?

    Even if you think it wasn’t illegal, I still cannot understand how so many of you are so willing to line up and support grossly unethical behavior on the part of Assange and his Wikileak friends. If something that was very sensitive, classified and potentially damaging to Japan fell into your inbox inadvertently would you destroy it or hand it over to Wikileaks. How about General Electric?

    Purely hypothetical, but what would you think if it was discovered that China or the Russian Mafia were funding Wikileaks?

  14. Davebo says:

    A lot of these comments are terribly depressing.

    Government contractors using taxpayer funds to buy underage boys for Afghan policemen as sex toys?

    No problem for Chuck or Pickleman Rodney. They’re brown after all.

    Someone releasing the details? TREASON!

  15. Davebo says:

    “Fox News: “What to you think of the Justice Department’s action so far in not to charge Julian Assange with treason?””

    Just another example of Fox News proving they are either idiots or assume their viewers are idiots.

    I’d go with the latter but both are possible.

    Just read some of these comments.

  16. Robert C. says:

    “Regardless, Assange and Manning, and most likely others connected to Wikileaks, are conducting espionage against the US, duing an active war. The penalties for this are rather severe.”

    WTF?…sounds like McCarthyism plain and simple.

    RC

  17. Robert C. says:

    “Even if you think it wasn’t illegal, I still cannot understand how so many of you are so willing to line up and support grossly unethical behavior on the part of Assange and his Wikileak friends. If something that was very sensitive, classified and potentially damaging to Japan fell into your inbox inadvertently would you destroy it or hand it over to Wikileaks. How about General Electric?

    Purely hypothetical, but what would you think if it was discovered that China or the Russian Mafia were funding Wikileaks?”

    What??

    Grossly unethical??….bombing a building in Yemen and killing 21 children, and then colluding with the Yemeni president to blame the Yemini gov’t and not the US…your tax dollars at work..

    Grossly unethical??…like our State Dept being aware that the US Corporation Dynacorp, who we are paying, is providing child prostitutes to Afghan officials, and our State dept does nothing..your tax dollars at work….

    Grossly un ethical??…like our State Dept spying on the UN???…your tax dollars at work

    You people who want to kill the messanger need to look in the mirror and realize that the US Gov’t and Pentagon are “grossly unethical”

    Robert C.

  18. Franklin says:

    austin:If something that was very sensitive, classified and potentially damaging to Japan fell into your inbox inadvertently would you destroy it or hand it over to Wikileaks. How about General Electric?

    Assuming I could understand said materials, I think I would actually make a judgment about them. And if I decided they needed to be released, it certainly wouldn’t have to be to Wikileaks – if the documents showed that GE was testing chemicals on black people, I think just about any news organization would be interested.

    What is your answer?

    reynolds: Not to mention the complete destruction of the reality TV business.

    You say that like it’s a bad thing.

  19. You guys are a trip. Judge, jury and executioner all rolled into one.