Sunday, June 25, 2006


The Definition of Treason: Part III

Parts I and II are now yesterday's news.

Part III involves, yet again, the revelation of classified material by a (heh) major (heh) newspaper (which shall remain namelss here).

Pronunciation: 'trE-z&n
Function: noun
Etymology: Middle English tresoun, from Old French traison, from Latin tradition-, traditio act of handing over, from tradere to hand over, betray
1 : the betrayal of a trust : TREACHERY 2 : the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign's family

Definition #1 might not even fit. At this point, does anyone really trust a major newspaper with anything (other than, perhaps, the New York Sun)?

But is it prosecutable under the Constitutional definition of treason?

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. 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.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

This FindLaw entry leads me to say, "No". It appears that Supreme Court precendent has established that there must be 2 elements to the crime (beyone the requirement for witnesses): 1) an overt act , and 2) the intent to overthrow the government. While the revealing of classified information is an overt act, it would appear that the unnamed newspaper's intent was to overthrow the current administration (despite their claims that it was "in the public interest"). I believe this pattern could be easily proven in court. And unless you buy into the fact that the President is the state ("l'etat, cest moi"), then the second element of the crime would be very hard to prove.

However, this would be much easier to prove. From the US Code, Title 50, Chapter 36, Section 1861 on the FBI's request for access to business information:

Section 1861(d): Nondisclosure. No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

And for those who think that this may give the FBI too much freedom, the Congressional Oversight section immediately follows this one.

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