I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, July 01, 2006

If this be treason ...

By Hume's Ghost

By Hume's Ghost -- "If [Bill Keller] were to be tried and convicted of treason, yes, I would have no problem with him being sent to the gas chamber" - Talk show host Melanie Morgan

Treason has been prosecuted around 40 times in US history. Less than 30 convictions have resulted. It's the only crime outlined in the Constitution and it was defined to specifically prohibit specious charges of treason, which the Founders recognized to be a tool of tyranny.

Authors Sheldon Rampton and John Stauber, in Banana Republicans, quote James Madison from The Federalist #43 to make this point: "new-fangled and artificial treasons have been the great engines, by which violent factions ... have usually wrecked their alternative malignity on each other."

They also note that James Wilson, one of the first appointees to the Supreme Court and the man who drafted the Constitution, also warned against specious charges of treason

The accusation of treason, Wilson warned in 1791, "furnishes an opportunity to unprincipled courtiers, and to demagogues equally unprincipled, to harass the independent citizen, and the faithful subject, by treasons, and by prosecutions for treasons, constructive, capricious, and oppressive."
Treason is defined in the Constitution as such:

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.
Common sense would indicate after reading this definition that one can not commit treason by accident, that the crime of treason requires an expressed overt intention or act to betray the nation. And there are only two ways that treason can be committed: waging war against the United States or "adhering" to enemies who are waging war against the nation.

Both were meant to be narrow and specific means by which treason would be defined. The first is obvious, it means taking up arms against the United States. The second, "giving them aid and comfort," means providing enemies with material assistance, e.g. giving them supplies, housing them, providing them with intelligence, etc. I can already hear the complaints that the Times did provide the enemy with intelligence, so let me address that now.

To meet the standard of treason as defined in the Constitution, it would have to be demonstrated that an individual had given intelligence to an enemy with the expressed intent to help that enemy wage war against the United States. Clearly, it is impossible to establish that the New York Times published either its NSA surveillance story or the SWIFT story with the intent of aiding al Qaeda to wage war against the United States. Indeed, this proposition is on its face absurd. Or at least it would be in saner times.

Writing the decision of Ex parte Bollman & Swartout (also see the Wikipedia entry) in 1807, Chief Justice John Marshall delineated why treason must be narrowly construed (bold emphasis mine)

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 a deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both.

To prevent the possibility of those calamities which result from the extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend.
The Court expanded on this theme in 1945 (a time when the US had been completely mobilized for war) in its Cramer v United States decision (bold emphasis still mine)

Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) Perversion by established authority to repress peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence. The first danger could be diminished by closely circumscribing the kind of conduct which should be treason-making the constitutional definition exclusive, making it clear, and making the offense one not susceptible of being inferred from all sorts of insubordinations. The second danger lay in the manner of trial and was one which would be diminished mainly by procedural requirements-mainly but not wholly, for the hazards of trial also would be diminished by confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern uppermost in the framers' minds, that mere mental attitudes or expressions should not be treason, influenced both definition of the crime and procedure for its trial.
The Court also explained that even actions that may actually benefit the enemy do not neccesarily constitute treason absent a demonstrated intent to adhere to that enemy (again, bold emphasis mine)

Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.
What is clear here is that the Founders intended for their definition of treason to be restrictive and to be applied carefully to prevent "prosecutions for treasons, constructive, capricious, and oppressive" to avoid "violent factions ... wreck[ing] their alternative malignity on each other." And what is even clearer is that the hyperbolic histrionics being directed at the New York Times is exactly the sort of wreckless rhetoric that the Founders sought to avoid.

But we know that dissent has been equated with treason for some time now. What we're seeing cultivated is an atmosphere in which what were traditionally core democratic values are being characterized as dangerous treasonous vices, and in which those who persist in adhering to those democratic values are characterized as a threat to the nation's security.

For example, I keep hearing the same noxious and servile refrain over and over again, "who elected Bill Keller?" as an argument in favor of the criminal prosecution of him. It's true. Bill Keller was not elected to decide what information should be classified. But what those who make this claim overlook is that the nation, however, did decide to guarantee the freedom of the press in the First amendment. Please note that the Bill of Rights does not grant anything, it guarantees rights that are inalienable. The freedom of the press to provide the public with oversight of its government was a right so fundamental to free society that it became part of the first guarantee of our liberty.

Were a significant portion of the supporters of this administration to have their way, though, treason would cease to be a solemn affair. It would be an everyday occurrence. It would be a means of stifling dissent, a tool to enforce political hegemony. Ann Coulter argues that all "liberals" are guilty of treason. Sean Hannity equates "liberalism" with terrorism (and evil.) Michael Savage calls "liberals" "the enemy within." Michael Reagan favors the hanging of Howard Dean for simply saying that we can't win in Iraq. Blogs for Bush believes Senator Feingold is guilty of treason for proposing the President be censored for breaking the law. Rush Limbaugh wonders if Joseph Wilson is guilty of treason for questioning the administration's Iraq intelligence claims (which as it turns out, were bunk.) Ben Shapiro (approvingly linked to by Michelle "conservatives zealously police their own ranks to exclude extremists" Malkin) believes anyone who speaks out against the administration is guilty of sedition and/or treason. "Aid and comfort" is a common refrain from our President and his administration. Et cetera.

And at the same time as the press lynch mob is busy demanding jail time or worse for the non-servile members of the press, the Senate came one vote short of transforming the American flag into a symbol for the supression of free speech, an effort that would catapult us into the illustrious ranks of other anti-flag burning nations such as Cuba, Iran, and Nazi Germany.

If Mark Twain were alive in Bizarro America today, his iconic explication of American democracy from A Connecticut Yankee in King Arthur's Court might look like this

You see, my kind of loyalty was loyalty to one's country, not to institutions or its officeholders. The country is the real thing; it is the thing to watch over and care for and be loyal to; institutions extraneous, they are its mere clothing, and clothing can wear out, become ragged, cease to be comfortable, cease to protect the body from winter, disease, and death. To be loyal to rags, to shout for rags, to worship rags, to die for rags--that is a loyalty of unreason; it is pure animal; it belongs to monarchy; was invented by monarchy; let monarchy keep it. I was from Connecticut, whose constitution declared "That all political power is inherent in the people, and all free governments are founded on their authority and instituted for their benefit, and that they have at all times an undeniable and indefensible right to alter their form of government in such a manner as they think expedient." Under that gospel, the citizen who thinks that the Commonwealth's political clothes are worn out and yet holds his peace and does not agitate for a new suit, is disloyal; he is a traitor. That he may be the only one who thinks he sees this decay does not excuse him; it is his duty to agitate, anyway, and it is the duty of others to vote him down kill him if they do not see the matter as he does.

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