by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif
August 21, 2005
SONGS OF TREASON FILL THE AIR
LOS ANGELES -- The word "treason" has been bandied about recently by both the Left and the Right. Whether considered in its literal or figurative sense, the word has seldom been so misused.
Ann Coulter published "Treason: Liberal Treachery from the Cold War to the War on Terrorism" in 2003. It was so over the top that the conservative writer David Horowitz (writing for his own frontpagemag.com) condemned it. A 2003 editorial in the New York Sun suggesting that antiwar protesters should be indicted for treason met opposition in none other than National Review Online.
More recently, anti-Bush bloggers have been calling Karl Rove treasonous for revealing Valerie Plame to be a CIA agent. Apparently they won't settle for Rove being disgraced or fired. Jail is the only option.
But these are just the more recent headline-grabbers. The misuse of the term has been a right wing staple for decades. It is used gratuitously by people writing letters to newspapers and it is shouted angrily on talk radio. Demands that we imprison our dissidents are not all that uncommon.
It would be simple enough to dismiss the whole lot of nonsense as politics running its usual course, but for the fact that the word "treason" in its legitimate context raises serious questions for the left, the right and the center. There are important issues that have not been considered adequately in our public discourse.
The U.S. Constitution is careful to limit the definition of treason. Article III, section 3 defines the crime:
1. 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. 2. 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.
The language may sound a little quaint to our modern ears, for example the reference to the United States in the plural as in "levying war against them," but the founders were being careful to deal with concerns originating in English legal tradition. For example, the term "corruption of blood" refers to the English practice by which convicted traitors could not pass their savings on through inheritance, a rule that would seem barbaric to our modern sensibilities.
The Constitutional language was a response to historical abuses of treason statutes by the English courts. Scholarly discussions of the history and interpretation of the Constitutional language can be found in print and on the Internet. "Hurst's Law of Treason" defines the issues in mercifully brief fashion and seems to be the source for many other Internet discussions. Among other places, it can be found at http://www.constitution.org/cmt/jwh/jwh_treason_jr.htm
It is important to recognize that the Founders intended for the definition of treason to be strictly limited. The Supreme Court has upheld this standard for more than two hundred years. The result has been a limited number of treason prosecutions in our entire history - fewer than 40 such trials and even fewer convictions in the whole history of the United States as a Constitutional republic.
Nevertheless, many of our citizens continue to treat the definition of treason as something more akin to the common dictionary definition. For example, the American Heritage Dictionary refers to treason as "The betrayal of one's country, esp. by aiding an enemy." The Oxford American Dictionary is even briefer, calling treason "treachery toward one's country or its ruler." Neither goes by our Constitutional rule.
In practice, the angry author of the latest letter to the editor and the talk-radio caller feel free to use this term the way the dictionary does, as a term for any action or speech that expresses disagreement with American overseas policy. Particularly when it comes to military action, any hint of non-acquiescence by the more thoughtful among us is liable to draw this accusation.
In this period during which American troops are fighting and dying in a foreign conflict, we are entitled to ask whether the founders would view the current antiwar movement as treasonous, or whether they would condemn those who yell the loudest. Would they consider them to be people who misunderstand another great founding document, the Bill of Rights?
May I suggest that the confusion lies not in the definition of treason, nor in those who misuse the term or even in those who oppose the war, but in a different failing of the political leadership. The clue, as we shall see, lies in an earlier article of the Constitution.
The definition of the term treason may be limited, but it is not meaningless. Clearly, it refers to those of our citizens who actively make war against the United States, and it includes those of our citizens who make common cause with our enemies in time of war. Thus, American citizens who engaged in propaganda for the Axis powers during World War II could be prosecuted and even hanged.
The Constitutional definition refers to "levying war," meaning the process of carrying out military action against the government. It seems a small risk in the current age.
It is the second aspect that is in question, namely the act of "adhering to their enemies, giving them aid and comfort." It is this phrase which has been taken up by talk radio hosts, by a newspaper and by internet authors as the justification for prosecuting Americans who publicly oppose our current military activity.
Much scholarly discussion centers on the part about "adhering to," arguing that "mere speech" by Americans who question their government is not sufficient to trigger the definition. You have to join the enemy side and participate actively in order to be tagged with the label "traitor."
Eugene Volokh, in rebutting the New York Sun editorial mentioned above, remarked: "I firmly support a war against Iraq, but it's vital that the people have a right to oppose it, both as a matter of moral and political principle, and as a matter of medium- and long-term practicality." He argued further, "Now it is actually true that this opposition sometimes can help our enemies, by emboldening them, or by weakening the nation's resolve; I have little patience for Pollyanna claims that speech can only do good and never do harm. But antiwar speech must be protected despite this harm, because the harm of suppressing it is greater." Volokh (http://volokh.com) is a First Amendment scholar and UCLA professor of law.
Thus, many liberals and conservatives tend to agree that freedom of expression must be defended, even in time of war.
This position is sensible but incomplete. May I suggest that being able to define the terms "enemies" and "war" is also a matter of some importance.
Article I, section 8 of the Constitution lists powers that are specifically granted to Congress. Subsections 11 through 16 grant Congress the power "To declare war, ..." as well as the power to raise armies, to maintain a navy, to make rules governing these forces, and to call forth the militia.
If nothing else, the "enemies" referred to in the treason clause obviously include those enemies that are defined under a congressional declaration of war. Congress declared war in 1941 after the attack on Pearl Harbor. Americans who joined the other side and participated against their own native country could be, and were, called traitors.
Since then, we have endured half a century of police actions, conflicts and other ill-defined military ventures, but it remains an open question as to whether the current occupation of Iraq falls under the Constitutional definition of "war." Clearly, Congress granted the president the authority to use force against Iraq, but was this action sufficient to trigger the treason clause?
It's not a trivial question, either legally or politically. Perhaps Congress intended that legal authority for the attack on Iraq was to be limited to removing its ruler, clearing the area of dangerous weapons, and keeping the peace, as pre-war propaganda implied. If so, who was, or is, the "enemy" in terms of Constitutional law? And further, is it improper for the public to question our policy when the goal of the operation is so ambiguous? Could the "enemy" be the rest of Europe, considering that the majority of European countries don't support our invasion? Is our enemy the Iraqi people? The insurgents?
The ambiguity is striking.
Imagine a different scenario. Suppose in response to the Sept. 11, 2001 attack on the United States, Congress had passed a declaration of war against al=Qaeda, the organization that sponsored the attack, and against the countries that supported them. Such an act would have created the Constitutionally legal basis for war.
In other words, Congress would have fulfilled its Constitutional mandate while giving the Executive branch the legal authority to execute that mandate.
In addition, there would undoubtedly have been a clearer legal brief for the President's authority to order an invasion of Iraq or Iran. Instead, we have another of our unending post-World War II police actions.
The American people are left with unanswered questions: who is the enemy - not just in terms of political boundaries, but in the legal sense? Can we countenance unlimited protest since, after all, we are not legally at war? And why hasn't Congress declared war?
Or, again, are we better off leaving the ambiguity because this way we maintain our freedom of expression, even if the effect is to seemingly "give comfort," however slight, to people who may or may not actually be our lawful enemies? Or, to view it from a more conservative side, how will our country react if we ever have to go to war for our own survival, considering the culture of unrestrained protest we have steadily developed?
Question builds upon question as the murky 21st Century's peace that is not quite peace, and war that is not quite war, continue.
Is it necessary to explain to the newspapers and the radio industry that the explosive accusation of "treason!" should not be made lightly? But this is the lesser sin.
The underlying failure is of and by Congress. It is a failure of nerve by politicians who can't quite work up the gumption to declare war, yet also can't accept ambiguity. In the end, Congress has decided to be political rather than serious.