It's called "the king of crimes." In political debate, it can serve as the ace of trumps, an incendiary accusation that appeals to emotion rather than reason. And, like much in our culture, it has been cheapened almost beyond recognition.
Governor Rick Perry of Texas, a Republican presidential candidate, started the latest round of treason-slinging, denouncing Fed Chairman Ben Bernanke's anti-recession policies as "almost treasonous." Fellow Republican Jon Huntsman turned the tables, claiming that Perry's statement that U.S. borders probably cannot be secured is "pretty much a treasonous statement."
Then came the drone strike that killed Anwar al-Awlaki, an American citizen, in Yemen. Some justified the killing by claiming that al-Awlaki's role with al Qaeda in Yemen made him a traitor.
Cries of treason have echoed around the Wikileaks prosecutions of both founder Julian Assange and accused leaker Private Bradley Manning of the U.S. Army.
This parade of treason accusations would dismay the men who founded the United States more than two centuries ago. They experienced our most famous treason: Benedict Arnold joining the British in 1780. Yet they feared the abuse of treason as a legal weapon. James Madison wrote in The Federalist No. 43 that treason accusations are "the great engines by which violent factions... have usually wreaked their alternate malignity on each other."
To limit inflammatory accusations of treason, the Constitution confines the crime to only two acts: either levying war against the government or giving aid and comfort to its enemies. The Constitution also imposes procedural limits. Unless the accused confesses, prosecutors must present two witnesses to each "overt act" of treason.
Aaron Burr and Treason
In our most notorious treason trial, Chief Justice John Marshall essentially directed the acquittal of former Vice President Aaron Burr, who was charged with raising an insurrection in the Western United States in 1806. Calling the definition of treason a matter of "infinite moment," Marshall recognized the risks posed by the subject: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made."
Ironically, Marshall bungled his first treason ruling. In a case involving two of Burr's confederates, Marshall wrote that treason could be committed by someone who performed "any part, however minute, or however remote from the scene of action." After hearing Burr's case, however, Marshall retreated from this expansive view.
In the longest judicial opinion of his career, Marshall ruled that prosecutors had to prove that Burr was part of an assembly of men that involved "actual force" if they wished to show he had levied war on the government. The evidence fell well short of that standard.
Marshall's limitation on treason still prevails. The United States has seen only about three dozen such cases in 223 years. How does the current spasm of treason-mongering hold up against the constitutional standard?
The statements by Messrs. Perry and Huntsman are silly. Neither Ben Bernanke nor Perry himself has levied war on the government or given aid and comfort to an enemy (except for enemies who would be comforted to note such ill-informed comments by American leaders).
The informal allegations against al-Awlaki, if true, would describe levying war on the government: the assembly of men to direct violence against it. The uncomfortable issue in al-Awlaki's case is the decision to kill him rather than bring him to justice, which is another question altogether.
But treason fits the Wikileaks cases poorly. Assange is an Australian citizen who owes no duty of loyalty to the American government. Private Manning had such a duty, but his situation presents other complexities.
Manning supposedly released confidential U.S. diplomatic and intelligence records through Wikileaks. That act did not levy war against the government. Did it give aid and comfort to our enemies?
Those disclosures likely cheered up those who dislike the United States, but that is not the same as aiding an identified enemy. Indeed, the pending charges name no enemy at all. If his intent was to inform the American people, he was not trying to aid an enemy.
The closest parallel, of course, is the release of the Pentagon Papers by Daniel Ellsberg during the Vietnam War. Ellsberg was prosecuted, unsuccessfully, for theft of government property and violating the Espionage Act of 1917, but was never charged with treason. Following a similar course with Manning would be wise. Treason accusations, as the Supreme Court has held, are "poisonous."
We should be very slow to cry treason.