CheneyLeaks vs. WikiLeaks

12/03/2010 08:20 am ET | Updated May 25, 2011

"Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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." (United States Constitution, Article III, Section 3).

"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". (18 USC § 2381).

I have been searching for clear distinctions in kind between Cheney et al.'s outing of CIA covert operative Valerie Plame and the most recent WikiLeaks data dump.

For the most part it has been a fruitless exercise.

Both CheneyLeaks and WikiLeaks released confidential information that risked American and/or foreign associates' lives and the safety of their families. The CheneyLeaks information seems to have provided aid-and-comfort to enemies of the United States, and we presume that is true for WikiLeaks as well.

The differences between them do not seem to rise to the level of qualitative distinctions, but they are worth noting as others may come to different conclusions.

WikiLeaks purportedly allowed pre-screening of the cables so that information that could endanger lives could be identified and redacted, but the United States, we are told, did not avail itself of that opportunity. CheneyLeaks, by contrast, forced its exposé down the throats of fellow-traveler columnists some of whom declined to publish, while others published despite being told by the CIA that they should not. One may not, however, wish to give too much credit to WikiLeaks on those grounds because it is impossible to know how many of those redactions it would have accepted.

WikiLeaks is releasing 250,000 cables, dwarfing the amount of information from CheneyLeaks. Much of the information that WikiLeaks appears to consider so key, however, such as attitudes toward the Iranian regime in the middle east, were among the worst kept secrets in the world. Nonetheless, the cables were classified so that their leak arguably constitutes criminal acts. Perhaps 250,000 criminal acts. And, their release arguably risks the lives and safety of Americans and others working with them.

CheneyLeaks, by contrast, released just a single piece of classified information. Nonetheless, as depicted in Fair Game, that information may have directly led to the deaths of people working with American operatives. We do not know about American operatives themselves. It also shut-down a key US counterintelligence operations directed at WMD in the Middle East. Because of the cover-up, and because of the primacy of keeping such information secret, we may never know how deep and broad the damage was.

CheneyLeaks also deliberately released disinformation on WMD to reporters such as Judith Miller who was working for the New York Times, and then quoted the New York Times pretending that was an independent source, to make the case to invade and occupy Iraq. Probably no crime there...but, it is interesting to note that if a Chief Executive of a publicly-traded corporation had done something analogous -- e.g., spread false information about their competitors' products and then quote back that information to investors as sourced in the New York Times or Wall Street Journal to provide a misleading imprimatur of legitimacy -- the company could be fined and its executives jailed for committing 'fraud-on-the-market'.

CheneyLeaks engineered an elaborate cover-up of its release of Valerie Plame's identity and released disinformation about her covert status. That is the "we-didn't-do-it,-but,-if-we-did, -there-was-nothing-to-what-we-did-anyhow" argument. WikiLeaks, by contrast, appears to be eager to take credit for its behavior and the importance and consequences of its actions.

CheneyLeaks will, of course, argue that it was authorized to de-classify information, and thus cannot be held criminally liable for de-classification. That is an arguable proposition, since it is likely that CheneyLeaks did not go through established de-classification processes, and thus its de-classification might be rendered invalid.

Moreover, it is not relevant. The crimes of improper de-classification and Treason are different. If a Vice-President, with authority to declassify, handed over defense secrets to an enemy, he might not have illegally disclosed classified information, but that disclosure might still be Treason.

Look above at the definitions of Treason in the US Constitution and US Code.

Do CheneyLeaks and WikiLeaks have different levels of alleged culpability? Is there enough to make a prima facie case against either, both, or neither?