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.

So treason, like fascist or fire, is a word to be cried sparingly.

If Pvt. Manning did what he is alleged to have done, he will more likely be tried in a military court for violating at least two articles of the Uniform Code of Military Justice—Articles 92 (“failure to obey orders or regulations”), which can be punishable by court-martial, and 134, which carries a number of years in prison—as well as another Article 134 in the Manual for Courts-Martial, condemning personnel who “altered, concealed, removed, mutilated, obliterated, destroyed, or took … a certain public record,” including classified records. *

The UCMJ’s Article 134 is a “general article” that covers a vast gamut of matters not specifically covered in other articles—”crimes and offenses not capital,” among others. (Eugene Fidell, a lecturer at Yale Law School, says it’s for this reason that 134 is known as “the fuck-you article.”)

However, there are also criminal statutes in the civilian courts that could apply to Manning. There is, for instance, 18 USC 641, which outlaws the theft of public records. It carries a punishment of up to 10 years in prison—or, if the stolen documents are worth less than $1,000, up to one year. (How much are those WikiLeaks documents worth, and how would that be determined?)

More serious is 18 USC 793, aka the Espionage Act. It hasn’t been invoked very often, but it has been trotted out on a few occasions in recent times.

In the mid-1980s, Samuel Loring Morison, a naval intelligence official, leaked secret satellite photos of Soviet shipbuilding facilities to Jane’s Defence Weekly. (His motive was to show that the Soviets were building up their navy and thus move Congress to boost U.S. defense spending.) He was charged with espionage and theft of government property and spent two years in prison before President Bill Clinton pardoned him (at Sen. Daniel Patrick Moynihan’s request), on the grounds that the law was sporadically enforced, that others had leaked similar material with no prosecution or even an official probe.

Just this year, Thomas Drake, a former senior executive with the National Security Agency, was prosecuted under Section 793(e), which prohibits “the willful retention of national defense information.” (He leaked information, about what he considered to be a wasteful procurement contract, to a news reporter, but he wasn’t charged with distributing the information, only with retaining it.) He was also charged with lying to an FBI agent and obstructing justice, but the impetus for the investigation was Section 793(e).

More telling still was the case of Lawrence Franklin, a Defense Department official arrested in 2005 for leaking classified information to two analysts with the American Israel Public Affairs Committee. He pleaded guilty and received a reduced sentence for agreeing to testify against the AIPAC analysts.

Those analysts, Steven J. Rosen and Keith Weissman, were charged, under the Espionage Act, with joining Franklin in a conspiracy (as the indictment put it)

to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.

This was a startling charge. “To gather sensitive information” and then to deliver it “to persons not entitled to receive it”—this is what news reporters do all the time. More remarkably, Rosen and Weissman were indicted for receiving the information. This is what newspaper, magazine, and Web site readers do all the time. If the Justice Department were to interpret Section 793 literally, it could arrest not only reporters like Seymour Hersh, Bob Woodward, and Walter Pincus but the editors and subscribers who read their articles.

U.S. District Judge T.S. Ellis, who presided over the AIPAC case, made precisely this point during the trial, specifically on Jan. 20, 2006, while sentencing Franklin:

All persons who have authorized possession of classified information and persons who have unauthorized possession, who came into possession in an unauthorized way … must abide by the law. … So that applies to academics, lawyers, journalists, professors, whatever. [Italics added.]

Now, the Espionage Act does state one caveat on this point—that unauthorized people who possess classified information can be prosecuted only if they have “intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation.” But this sets an awfully low bar. Reread that passage carefully: “intent or reason to believe.” In other words, they don’t need to have an “intent” to damage the United States or help another nation—only a “reason to believe” that the information could be used to that purpose.

In the end, the charges against the AIPAC officials were dropped; the judge, the prosecutors, everyone involved, realized that the logic of the law was either too vague or too draconian. (For a jaw-dropping list of what Section 793 prohibits, click here.)

And here’s where—here is the only place where—WikiLeaks’ Assange might face prosecution. Like the AIPAC defendants, he received classified information without authorization and then transmitted it to others who had no authorization.

It is extremely doubtful that officials in the Obama administration would press this charge. It would be even more appalling if they did. If Assange is charged with a crime, one might ask why Bill Keller, the New York Times’ executive editor, shouldn’t be charged, too. (Yes, the Times chose not to print some of the more allegedly damaging documents naming Afghan informants, but he received the information, and transmitted some of it, without authorization.)

During the AIPAC case, before the charges were dropped, Judge Ellis conceded that the espionage law was problematic but added, “The law says what it says. … If it’s not sensible, it ought to be changed. But [Congress is] the body that changes it, not judges. The judge simply interprets and applies the law.”

Four and a half years have passed now, and that law is still on the books. The proper scope of classified information—what should be secret, what shouldn’t, what’s a noble leak, what’s a dangerous one—is a matter of high-profile debate. (Even Daniel Ellsberg, the leaker of the Pentagon Papers and in general a defender of WikiLeaks, says that some secrets should be kept secret.)

Instead of loosely tossing around words like treason, Congress should maybe think about crafting a tighter, more sensible law.

Correction, Aug. 4, 2010: In the original version of this piece, the Article 134 in the Manual for Courts-Martial was mistakenly reported to be part of the Article 134 in the UCMJ. (Return to the corrected sentence.)

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