Fox News: “What to you think of the Justice Department’s action so far in not to charge Julian Assange with treason?”

Senator Lieberman: “Aaah, I don’t understand why that hasn’t happened yet. I mean, we can go back to the earlier dump of classified documents, mostly related to the war in Iraq and Afghanistan. It occurred in July and to me that was a violation of the espionage as well.”

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That little exchange, broadcast Tuesday, invites a comment on treason. It is unique in being the only crime that the Founders of America restricted the Congress from defining. No doubt this is because it is the most serious of all crimes and one that has been abused throughout history. In earlier times it was treasonous merely to imagine, let alone talk about, the death of the king. The Founders didn’t want anything similarly subject to abuse to go on the law books in America. So they prohibited the Congress from defining treason in any but the most restrictive terms.

“Treason against the United States,” they established, in Article Three of the Constitution, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” In other words, one must commit one of two acts in order to be guilty of treason against America — one must either levy war or one must adhere to an enemy, giving him aid and comfort. So seriously did the Founders take the crime of treason that they also laid down special hurdles for convicting someone of treason.

They established that conviction for treason can be made only on the testimony of two witnesses. The witnesses must testify to the actual act of treason. And the two witnesses must have witnessed the same act. And it can’t be any act. It has to be an overt act. And just to mark the point, an American court can’t convict someone on the basis of a confession made to, say, the police or in a signed written document sent to a judge. A confession of treason has to be made in court. And it can’t be done, say, in a judge’s chambers or a secret session. It has to be open court.

All that is in the Constitution. It turns out that America’s founding document leaves the Congress and the Courts almost no wiggle room in defining treason. The Founders just didn’t trust the Congress, and to listen to Senator Lieberman, one can understand why. Congress did, though, take what wiggle room it had and added yet another restriction on the meaning of treason. They established that treason applies only to those who levy war against he United States or adhere to its enemies, giving them aid and comfort while “owing allegiance to the United States.”

So Mr. Assange, an Australian, couldn’t under American statute be put in the dock on a charge of treason. It’s possible at least to imagine that he could be put in the dock for espionage, which Mr. Lieberman eventually mentioned in his response to Fox. That is a different crime than treason. It, too, can be a capital crime. It is the crime for which Julius and Ethyl Rosenberg were doomed. So restrictive is the definition of treason that it would be difficult to sustain such a charge against even the private soldier, Bradley Manning, who does owe allegiance to the United States and is now in custody for leaking the documents that Wikileaks published.

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Treason may be a hard charge to make stick, but if it does stick, woe betide those who were in league with a traitor. This was a point dealt with in one of the most famous rulings ever to come down on treason — Ex Parte Bollman and Swartwout. The opinion was written by the chief justice of the United States at the time, John Marshall, in a case from 1807 involving two confederates of Vice President Burr. Marshall acquitted Erick Bollman and Samuel Swartwout of treason because, although the evidence was that they had conspired against the United States, war hadn’t actually been levied. But Marshall issued a famous warning about treason: “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.”