Wednesday, June 16

Reason And Treason

I wish people, especially Bill Maher, with whom I completely agree on virtually all other issues, would stop playing fast and loose with the word “treason” when referring to Donald Trump. (Or course, Trump has been at least equally reckless. But I expect more of Maher.) Now, I have immensely greater respect and regard for the excrement I flush down my toilet every morning than I have for Donald Trump. (At least the former has served a useful and healthy purpose, which is considerably more than I can say of the latter.) So my purpose is not to defend Trump. My concern, rather, is to defend the Constitution, which I esteem as the civil / secular equivalent of Holy Writ. We should be meticulously careful about construing the words of the Constitution for the same reason that the Catholic Church insists that priests celebrating Mass should be equally meticulous in using the precise phraseology of the Words of Institution that effect transubstantiation. Words matter.  In particular, words like “treason”.

Section 3 of the US Constitution is rigorously precise in its definition of treason and in setting limits in the punishment of same:

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.

“Corruption of blood” refers to one of the ancient punishments of treason under the British monarchy, whereby a traitor could be, in effect, deemed dead, his property confiscated, his titles revoked, and the accompanying privileges rescinded, thereby prohibiting his heirs from inheriting both property and position in society, because conviction of treason, under the British Monarchy, meant that there was no longer anything to inherit. So, under the British Monarchy, the traitor himself could be, usually was, physically executed, but his family could be killed socially by having their position in society abrogated. Under the Constitution, property could be confiscated, but only during the life of the person convicted of treason:  his family might have to start from scratch, but could rebuild.

A couple of points should be noted at the outset: 

(1) treason “shall consist only in levying war against [the United States]”, and

(2) the context of war, i.e., a war declared by Congress or sanctioned by Congress under the terms of, e.g., the War Powers Resolution, carries over into the rest of that clause:  “adhering to [the United States’] enemies” and “giving [those enemies] aid and comfort”.

I am aware of no case law that precisely defines “adhering” or “aid and comfort”. Those terms remain to be clarified. But the point here is that the overall context of Article III, section 3 requires that an official state of war exist between the US and an adversary nation. (I will keep referring to “nations” in what follows, but it is quite possible to be convicted for treason in the case of giving “aid and comfort” to non-state actors, e.g., al-Qaeda, ISIS, al-Shabaab, etc., provided, again, that war against them has been duly authorized by, e.g., an AUMF from Congress.) Absent a state of declared war, it is not constitutionally possible for a person to commit treason:  “high crimes and misdemeanors,” “class-A felonies,” “obstruction of justice,” yes, but not treason in the most constitutionally restricted, technical sense.

Benedict Arnold

Some examples may clarify.

o It would be possible for a person to commit treason against the US by supporting military action of North Korea against US forces in the Republic of Korea, because a technical state of war still exists between the two Koreas by reason of a United Nations authorization for the United States and its allies to use force.

o It is also arguable that Jane Fonda could have been prosecuted for treason for her actions in support of North Vietnam during the Vietnam War, but even there, there would be room to construe the Tonkin Resolution so narrowly that the Resolution did not amount to an official declaration of war, as in the Korean conflict, in which case no state of war existed technically  between the US and North Vietnam. In the latter case, Jane Fonda could not be charged with treason under Article III, section 3. (President Johnson asked Congress for authorization to retaliate for the attacks on the American warships Maddox and Turner Joy in the Gulf of Tonkin, but the key question is whether the Tonkin Resolution authorized a wider state of war than defense of American naval vessels. If so, then the Tonkin Resolution was the functional equivalent of a declaration of general war, the interpretation favored by President Johnson.)

o Chelsea Manning is not guilty of treason because cracking the codes that secure Defense Department computers, while a grave crime, was not (a) done on behalf of an adversary power (b) during an actual declared war. Her duplicity deserves to land her so far back in jail that her corrections officers would have to feed her by shooting beans at her with a scattergun, but a charge of treason would not be constitutionally justified. (For the record, I seriously disagreed with President Obama commuting Manning's sentence -- not technically a pardon. She should be, not only in jail, but confined to a supermax facility. But for breach of national security, not for treason.) Ditto Edward Snowden for the same reason. People who disagree with me on the Manning and Snowden cases have the luxury of adopting a much more cavalier attitude toward such matters, because they have never, as I did for about a dozen years, depended on the strict confidentiality of inter-embassy communications for their security. Break that confidentiality, and it is quite possible for people to die and be "disappeared".

o Even Julius and Ethel Rosenberg, who were executed as Russian spies, were charged with espionage and not treason, because no state of war with the Soviet Union existed at the time.

o Every member of the Confederate Army could have been charged with treason under Article III, section 3, but President Lincoln did not do so because he wanted to unite the Nation instead of dividing it further at the cost of more blood. Hence his blanket pardon, conditional only upon the Confederates’ laying down of arms and taking an oath of allegiance to the Union.

As I said above, words are important. The fact that we must make such fine-tooth-comb distinctions under the constitutional definition of treason – the only definition that matters --is a measure of how gravely the Framers took such charges.

Two other points: 

  • Conviction of treason requires the corroboration of two witnesses “of the same overt act”. This rules out rumor, innuendo, hearsay – which would be inadmissible, anyway, in any criminal proceeding (actually, there are certain narrow circumstances under which hearsay would be admissible, but let’s not complicate things) -- and also requires direct observation of the “overt act” itself, e.g., the deliberate transfer of classified material to a hostile power during a declared war. “Overt” means “directly observable”. “Overt” also implicitly carries the sense of “intentional”. If I leave a classified file out on my desk while working for the US on a classified project, or if I take a classified document home from a “scif,” I am guilty of gross negligence and can be fired and prosecuted for same. But, given that my action was due to sloppiness and negligence -- even sloppiness and negligence that rises to the level of a prosecutable crime -- I cannot be convicted of treason. There is no such thing as “inadvertent treason” or “accidental treason”. Sloppiness? Yes. Carelessness? Yes. Absent-mindedness? Yes. But not treason. Treason is like murder:  it must result from an intentional and deliberate act. Again, words are important. Be careful how you use them.
  • A conviction for treason can also result “on confession in open court” (boldface added). Note well:  not just “on confession in court,” but “on confession in open court”. This precludes the use of “star chambers” to railroad into jail or into an execution chamber people convicted of treason. To the greatest extent possible consistent with the maintenance of necessary secrecy, conviction of treason must publicly adhere to the requirements of due process, not some arbitrary, politically motivated prescription in which the verdict has been preordained.

So if you want to pillory Trump, brand a capital “A” on his forehead, accuse him of obstruction of justice – still an open question in the Mueller report as of this writing, Fox News notwithstanding – or accuse him of any other impeachment-worthy crime, please do so. Knock yourself out. Great Cthulhu knows there are sufficient reasons lying dormant under any rock.

All I ask is that you not do so in such a way as to inadvertently  aid and abet Trump’s manifest intent to dismantle the Constitution itself. That cure would be even worse than the disease of Trumpism.

James R. Cowles

Image credits

Gunpowder plot graphic … Steve Fareham … Creative Commons Licence
Tammany's treason, impeachment of Governor William Sulzer … photographer unknown … No known copyright restrictions
Broadside re John Brown for treason … Author unknown … Public domain
Constitution … Department of Defense … Public domain
Benedict Arnold … Thomas Hart … PUblic domain
"Treason" featured image … SlowKing4 … GNU Free Documentation License, Version 1.2

Leave a Reply