Over the Top
Charging the WikiLeaks leaker with treason would be absurd.
Should Pvt. Bradley Manning, the Army intelligence analyst charged with leaking troves of classified documents to WikiLeaks, be tried for treason?
And what about Julian Assange, the founder of WikiLeaks: Should he be locked up for something?
Treason is a capital crime, and Rep. Mike Rogers, R-Mich., a member of the House Intelligence Committee, says the death penalty is what Manning deserves. "He put soldiers at risk who are out there fighting for their country," Rogers told a talk-radio host this week. "And he put people who are cooperating with the United States government clearly at risk."
As for Assange, U.S. government lawyers are reportedly looking into whether it might be possible to charge him with espionage.
Manning, who is currently in detention at Quantico, is probably going to be tried under the U.S. Military Code of Justice and be sentenced to many years in a military prison. Assange, an Australian citizen, would be advised to stay out of the United States for the foreseeable future.
But whatever one might think of their actions (and I'm sorry for Manning, very leery of Assange), it's way over the top to accuse Manning of treason and Assange of a crime.
The U.S. Constitution defines treason in a deliberately narrow fashion. Under Article III, Section 3:
Treason against the United States shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.
In an elaborate stretch, one might claim that some of Manning's leaks might give an enemy aid and comfort, but in no way can he be seen as "adhering" to enemies or "levying war" (which later Supreme Court decisions interpreted to mean physically waging war) against the United States.
Fewer than 20 Americans have been convicted of treason in the country's entire history. Only one has been so much as indicted for treason since 1952, and that's Adam Yahiye Gadahn, who in 2006 was charged with the crime after appearing as an al-Qaida spokesman in propaganda videos calling for the killing of Americans. (Now that's treason.) Even John Walker Lindh, the American who was captured along with Taliban fighters on the Afghan battlefield, was charged with crimes falling short of the big T.
Fred Kaplan is Slate's "War Stories" columnist and author of the book, The Insurgents: David Petraeus and the Plot to Change the American Way of War. He can be reached at email@example.com. Follow him on Twitter.
Photograph of Julian Assange by Leon Neal/AFP/Getty Images.