NEW HAVEN, CONNECTICUT – A military judge’s rejection of the treason charge against Army Private First Class Bradley Manning has reignited debate over the very meaning of the word.
Manning, who provided tens of thousands of secret documents to WikiLeaks, was convicted last week of espionage and several lesser offenses and will probably spend the rest of his natural life in prison. But he was acquitted on the charge of “aiding the enemy” — the Uniform Code of Military Justice’s functional equivalent of treason — and controversy persists over whether he was or was not a traitor.
In the National Review, for example, legal scholar John Yoo found the case easy — and dangerously wrong: “His actions knowingly placed the lives of American soldiers, agents, and allies at grave risk. In the world of instant, worldwide communications and nonstate terrorist groups, Manning committed the crime of aiding the enemy, and he is lucky to escape the death penalty.”
In the American Prospect, on the other hand, we read a warning that a conviction on the treason charge “would have set an extremely dangerous precedent.” Why? Because of journalists’ need for sources: “National security leaks happen all the time — those who report on the topic wouldn’t be able to do their jobs without them — and if every time someone in the Pentagon passed a tidbit to a reporter they could be charged with something akin to treason, the chilling effect would be, well, chilling.”
“Treason” is a powerful word. Its appurtenant personal noun, “traitor,” conveys a seamy image not only of betrayal but also of underhandedness, of cravenly skulking in the shadows, pretending to be a friend while all the while measuring those who trust you for the drop.
The contours of the crime are sharply restricted by Article III of the U.S. 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.”
This seems a rather heavy club to wield against so small a target as Bradley Manning, aptly described by journalist Thomas E. Ricks as “a goofball anarchist.” Even Julius and Ethel Rosenberg, accused of giving information about the atomic bomb to the Soviet Union, were charged only with espionage.
Because of the constitutional limits on the charge of treason, convictions have been few. Some are famous: John Brown for his raid at Harpers Ferry, for example, or Iva Toguri D’Aquino, who broadcast anti-American propaganda during World War II and became known among Allied soldiers as “Tokyo Rose.” (Benedict Arnold of Revolutionary War fame was never convicted of treason.)
The legal charge of treason has often been used to serve overtly political ends. Consider the 1851 trial of citizens who took up arms near Christiana, Pennsylvania, to resist a legally constituted posse trying to enforce the Fugitive Slave Act. Those who defended the escapees were charged with treason. The prosecutor argued that they “arrayed in a war-like manner.” (They were acquitted.)
It’s difficult to imagine such an argument today. Certainly there are countless instances of individuals taking up arms to resist the application of law, but ordinary criminal processes are perfectly sufficient to deal with such cases. The Espionage Act of 1917 was more than sufficient to deal with Manning.
Treason is tough to prove. It should be. A traitor is no ordinary criminal. A traitor doesn’t just violate the law; he also elevates the enemy’s cause above his own country’s, setting out to harm and perhaps defeat the very nation whose laws protect him. This is no light charge.
Even in the United Kingdom — where to this day it is considered treason to “compass or imagine the death of our lord the king, or of our lady his queen or of their eldest son and heir” — the courts have been cautious, demanding evidence of intention. Thus Justice Francis Buller, in the late 18th-century treason prosecution of Frenchman Francis Henry De la Motte, defined treason as collecting intelligence “for the purpose of sending it to an enemy, to enable them to annoy us or to defend themselves.”
Readers can decide for themselves what they believe Manning’s “purpose” was, and how much intention should be inferred from the nature of the act itself. My point is that the matter is hardly without controversy and is, in that sense, unfortunately characteristic of an alarming trend under both Barack Obama’s and George W. Bush’s administrations toward asserting highly dubious legal theories because they are politically convenient.
All of which brings us to the case of Edward Snowden. Lots of thoughtful people have drawn distinctions between Snowden and Manning, suggesting that Manning was more reckless in what he released.
Supporters have even compared Snowden with Daniel Ellsberg of Pentagon Papers fame. (It must be added that Snowden’s flight to avoid prosecution, coupled with the announcement that he has been granted asylum in Russia, surely dulls the sheen of his supposed heroic act of civil disobedience. Martin Luther King Jr. didn’t write his famous letter from Moscow or Hong Kong.)
But not everyone agrees that Snowden is a hero. Consider, for example, last month’s comment from Sen. Dianne Feinstein, Democrat of California and chairman of the Senate Intelligence Committee: “I don’t look at this as being a whistleblower. I think it’s an act of treason.” Lest she be misunderstood, she added: “He violated the oath, he violated the law. It’s treason.”
The reason Manning shouldn’t have been charged with treason is that he’s simply too small. To call him a traitor is to shoot at a gnat with an elephant gun. It elevates a craven and reckless act into a brave choice of great ideological significance.
Is Snowden a bigger target or a smaller one? If we ever get him back, perhaps we’ll find out.
Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama” and the novel “The Impeachment of Abraham Lincoln.”