The social media interaction is familiar by now. An anonymous government source leaks classified information to the media. One side of the partisan divide gets indignant at the contents of the leak, while the other side is angry with the leaker. Then comes the inevitable flood of comments declaring, “Treason!” followed by calls for resurrection of the firing squad.
It can certainly be infuriating for everyone, but especially for cleared professionals, to see classified information show up in the papers or on television. After all, information is classified specifically because allowing our adversaries to see it can harm national security. But no matter how egregious these security breaches are, under the present circumstances, they do not rise to the level of treason.
Treason is the only crime defined in the Constitution. Article III, Section 3 states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It adds, “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.”
why treason charges can’t be yielded for political gain
The Founding Fathers, having grown up as British subjects, had a good reason for this definition. In medieval England, treason had meant whatever the king wanted it to mean. The passage of the Treason Act of 1351 gave it a specific, limited definition, but in practice, within 40 years, kings were ignoring the law and again executing their opponents practically whenever they felt like it.
The delegates to the convention of 1787 were determined that their rebellion to restore their rights as Englishmen would not be undone by another tyrant. Thus treason is narrowly defined—so narrowly defined that fewer than 30 people have been charged with it in American history. The last treason conviction was in 1952, on charges that arose during World War II.
Treason was officially codified in law in 1909; the current statute, last revised in 1994, is 18 USC 2381, which reads:
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.
The operative word in all this is “enemies.” Russia is a rival, a competitor, and even an adversary. But without a declaration of war, Russia is not an enemy. Had any of these recent leaks been providing information to al Qaeda, against whom the U.S. is effectively at war under the Congressional Authorization for the Use of Military Force, then the charges of treason would be more believable.
The leaks are still criminal acts subject to stiff penalties under the Espionage Act (including death if the leak resulted in the death of a covert agent), but no matter how angry they make you, you can’t technically call them treasonous.
