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Sounds like the real thing, not hyperbole. Thanks to Rusty Shackleford for the pointer.

UPDATE: Just to clarify what I had hoped would be clear -- this sounds like the real thing based on what strikes me as the likely import of the assertions in the article, but of course we can't know whether it is the real thing until the matter is investigated further. Eric Muller, for instance, suggests that one of the people might have innocently gotten into a terrorist's (or aider-of-terrorists') taxicab, and points out that the article doesn't give conclusively incriminating information about the others. Naturally, one can't make a definitive judgment based on circumstantial evidence in a newspaper article. But it does sound like treason, though of course it's possible that the ultimate conclusion may sound different from the first report.

By the way, a quick summary of treason law as it may apply here. The U.S. Constitution says that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." This has been interpreted as requiring that (1) the offender be a U.S. citizen or resident, (2a) who participates in war against the U.S. (which includes domestic rebellions, and would surely include foreign ones, even if conducted by a nonstate entity) or (2b) who helps those who are in that war with the intention of advancing their cause. (There are possible defenses to this charge, for instance duress, if you can prove that you were forced to help the enemy -- to give the clearest example, hostages who are forced to make propaganda videos for the enemy aren't guilty of treason.)

Naturally, as Eric points out, mere "high-level ties to Abu Musab Zarqawi, the Jordanian terrorist and leading al-Qaida ally in Iraq" aren't literally enough for treason. But presumably the government is suspecting that the ties are more than just being a frequent backgammon crony of the man, and instead involve providing assistance, likely with the intention of helping Zarqawi's forces.

Treason is often a hard crime to prove, partly because of the constitutional requirement that "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." Note, though, that this goes to whether a person may be convicted of treason, not whether a person is in fact guilty of treason. A person who committed treason is still a traitor even if he can't be convicted of the crime, just as (for instance) a person who committed murder but admits this after being acquitted is still a murderer even though the Double Jeopardy Clause prevents his retrial. Because of this, some traitors may end up being prosecuted under other criminal statutes that don't have such procedural requirements.

Alex R:
Did you see the NY Times article about one of those detainees, here?

Obviously, this gentleman's relatives are likely to put him a a good light, but one claimed that the FBI cleared him of any suspicion:
The relatives said the only detailed information they had received came from one of the F.B.I. agents who searched Mr. Kar's apartment in the Silver Lake neighborhood of Los Angeles on May 23. They said that after analyzing his personal files, computer drives and other materials, the agent, John D. Wilson, returned the seized items on June 14 and assured them that that the F.B.I. had found no reason to suspect Mr. Kar.

"He's cleared," one of Mr. Kar's aunts, Parvin Modarress of Los Angeles, quoted Mr. Wilson as saying, "They were waiting for a lie-detector machine, but they finally got it. He passed the lie-detector test."

M. Catherine Viray, a spokeswoman for the F.B.I.'s office here, said she could not comment on either the bureau's investigation of Mr. Kar or Mr. Wilson's conversations with his relatives.


It's at best premature to call this guy, at least, a traitor. If he (or any of these other American detainees) have committed treason, shouldn't they be prosecuted for it, with the prosecutors forced to present the "Testimony of two Witnesses to the same overt Act", or a "Confession in open Court"?
7.6.2005 2:06pm
A liberal:
What are Kar's rights in this situation? It seems that he is claiming he had no idea that his taxi driver had IED parts in the trunk, which seems possible at least. If there is no other evidence of insurgent connections, I would consider that reasonable doubt.
7.6.2005 2:28pm
Paul Gowder (mail):
I don't agree that this would necessarily be treason.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Now (a) can't be the case, by the Bush Administration's own propaganda, power in Iraq has been handed over to an Iraqi government. Hence, no war is being levied? against the U.S. by these folks. War is being levied against Iraq by them. The mere fact that Iraq is using U.S. troops doesn't make the fight one against the U.S. itself.

Similarly, adhering to the enemies of the U.S. appears to mean enemy nation-states. After all, an enemy of the U.S. can't be anyone who happens to kill Americans, even for political purposes: otherwise, the Weather Underground would be "enemies", and anyone "adhering" or "providing aid and comfort" to them would be committing treason. As would any number of other 60's extreme groups. These people are insurgents, not connected to any nation-state that is in a state of war with the U.S..
7.6.2005 2:50pm
Steve:
Legally, I think there are two separate issues. When a U.S. citizen is captured overseas, apparently fighting for the enemy, Hamdi v. Rumsfeld establishes the limited rights they are due. In short, as a U.S. citizen, they are entitled to some sort of hearing before a neutral tribunal to establish whether they have been properly designated as an enemy combatant, but that's where the inquiry ends. They are not entitled to full due process protections, nor does the government have to charge them with any crime, as long as they are actually an enemy combatant.

If the government decides to actually bring a charge such as treason, however, they are obviously entitled to full due process in connection with those charges.

Hamdi confuses me, incidentally, with respect to whether it matters where the detainee is physically being held. The Court first engages in a long discussion to establish that location shouldn't matter, because if you give detainees additional rights solely because they are housed in the U.S., all you do is create an incentive for the military to hold enemy combatants overseas. But then the Court proceeds to explain how Hamdi is entitled to seek a writ of habeas corpus for the very reason that he is detained within the US. So I guess that leaves me confused as to whether location matters.
7.6.2005 2:53pm
A. Nonymous (mail):
power in Iraq has been handed over to an Iraqi government. Hence, no war is being levied?

I don't think so. For example, there is no requirement that the US declare war in order for a treason conviction. Example here would be a US citizen piloting a Japanese plane in a bombing run on Pearl Harbor. Clearly, levying war, but war was not declared by the US at any rate for days after. I am also thinking of the Burr treason trial(s) and Marshall's comments relating to Burr's actions.

In the case of Iraq, a US citizen who militarily attacked US forces would be levying war against the United States.

Now, I agree there is some confusion as to if there would be a need for a nation state to be involved. Would a US citizen pirate who attacked a US Navy ship be a pirate, treasonous, our both? Don't know. Maybe the Civil War is a better example and the treason cases that arose out of that.

I think for clarity and the like they'll be charged with something other than treason. But who knows.
7.6.2005 3:21pm
Eugene Volokh (www):
The enemy in Iraq is levying war against us, as well as against the Iraqi government. There's no requirement that the war be levied by a nation-state; rebel groups in the U.S., Indian tribes, and bands of marauders have been described as levying war against the U.S. -- the enemy in Iraq would surely qualify as well.
7.6.2005 3:39pm
Steve:
The Hamdi decision also deals with some of the unique aspects of the "War on Terror," acknowledging that precedents established in the days of uniformed armies and formal declarations of war don't necessarily apply to the realities of modern warfare. The Court was clearly troubled by the concept that the "War on Terror" has no defined ending, and thus enemy combatants might conceivably be held for the duration of their lives; but it finessed the issue by noting that active hostilities were still taking place in Afghanistan, hence the traditional precedents mostly suffice.

I'm not sure what the correct policy answer is. Under the traditional view, it was OK to release a German soldier after WWII was over because he'd presumably go back to Germany and resume a productive life. But the modern concern is that if you capture an enemy combatant in Iraq or Afghanistan, they may engage in acts of terrorism against the US upon their release, without really caring whether actual hostilities have ended in Iraq and Afghanistan. So what's the solution? Execute everyone we capture on the battlefield? Lock them all up forever? It's not a simple problem to resolve.
7.6.2005 3:39pm
Paul Gowder (mail):
Eugene: for the indian tribes, at least, they could well be described as nation-states. I'm really skeptical of the idea that bands of marauders and rebel groups in the U.S. could be seen as enemies who are levying war against the U.S.

I mean, what would Justice Scalia have to say about this? Was the original understanding of the treason clause that anyone who attacks U.S. soldiers, no matter their ends or allegiances, is a traitor?

What's the line between crime and war? It seems like there's a spectrum, with Pearl Harbor (clearly war) on one end, and say the Oklahoma City bombing (clearly non-war) on the other. I submit that one way to tell the difference between Pearl Harbor and the Oklahoma City bombing is that the former was done by a country with the army and the capacity to engage war in the formal sense involving a declaration at the start and a treaty at the end. Anyone who adhered to Japan would clearly be a traitor.

Oklahoma City, on the other hand, was committed by an actor who had none of the formalties of warfare behind them: there was no ongoing conflict, there was no nation state, etc. Whatever else Timothy McVeigh might be (a murderer, a terrorist, etc.) he wasn't a traitor.

Iraq seems to be somewhere in between. It started as a war, but now there can't really be said to be a war in the sense the framers would have envisioned it, because the government of the country the troops are in is technically friendly. It's more of an occupation, and what's being levied is more resistance than warfare. Going back to the Pearl Harbor example: suppose that after all the peace treaties were signed, and while the U.S. occupied Japan and Japan was ruled by a friendly government, some American citizen participated in a riot against U.S. soldiers started by a handful of Japanese citizens with no political connections? Would that be treason?

I'm not sure... in the end, you might be right -- it's probably more likely than not that you are -- but I'd like to suggest that the question isn't quite so easy as you make it out to be.
7.6.2005 3:56pm
Wince and Nod (mail) (www):
Paul,

I am not a lawyer, but since Timothy McVeigh was trying to commit an act of rebellion against this nation, I think traitor might very well apply. John Fries was found guilty of treason and sentenced to death for leading a mob of up to four hundred men in rebellion against a particular tax.

Yours,
Wince
7.6.2005 5:34pm
Paul Gowder (mail):
Wince: that page is VERY interesting. I hadn't heard of the Fries rebellion before. Justice Iredell's speech apparently took a contested position on the crime of treason:

" "The only species of treason likely to come before you is that of levying war against the United States. There have been various opinions and different determinations on the import of those words. But I think I am warranted in saying, that if in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the Congress of the United States, together (as for instance the land tax act) the object of their opposition calculated to carry that intention into effect, was levying war against the United States, and of course an act of treason. But, if the intention was, merely to defeat it's operation in a particular stance, or through the agency of a particular officer, from some private personal motive, though a higher offense may have been committed, it did not amount to the crime of treason. "

Note that he took this position -- which could equally well convict any number of activists who would resort to non-lethal "force" in opposition to certain laws (anyone here sit in a tree recently?) -- right before giving an incredibly inflammatory speech against the "traitor" to the grand jury. A bit of a kangaroo court, that seemed.
7.6.2005 7:04pm
Wince and Nod (mail) (www):
Paul,

I really can't see how heading up an armed mob ("force of arms" in the above quote) is similar to non-lethal force. I thought "guns, swords, clubs, staves and other warlike weapons" were implements of lethal force. What leads you to believe that the James Iredell's position "could equally well convict any number of activists who would resort to non-lethal "force" in opposition to certain laws"? I am truly mystified. Please spell this out for me.

Yours,
Wince
7.6.2005 8:23pm
Paul Gowder, with help from Blackstone (mail):
I've got something better, actually... evidence that my connection between foreign powers and treason was correct, at least in the historical understanding.

Story's commentaries on the constitution note that the treason clause in the constitution follows the statute of treason of Edward III (§ 1792), and cite blackstone's commentaries on same as the "well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages."

Blackstone's commentaries on treason note that the term "the king's enemies" in English law implies the following:

"“IF a man be adherent to the king's enemies in his “realm, giving to them aid and comfort in the realm, or elfewhere,” he is alfo declared guilty of high treafon. This muft likewife be proved by fome overt act, as by giving them intelligence, by fending them provifions, by felling them arms, by treacheroufly furrendering a fortrefs, or the like k. By enemies are here underftood the fubjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coafts, without any open hoftilities between their nation and our own, and without any commiffion from any prince or ftate at enmity with the crown of Great Britain, the giving the many affiftance is alfo clearly treafon; either in the light of adhering to the public enemies of the king and kingdom l, or elfe in that of levying war againft his majefty. [PG: the previous section notes that an act of war against the king within the king's realm is also treason, and gives the example of holding a castle against the king] And, moft indifputably, the fame acts of adherence or aid, which (when applied to foreign enemies) will conftitute treafon under this branch of the ftatute, will (when afforded to our own fellow-fubjects in actual rebellion at home) amount to high treafon under the defcription of levying war againft the king m. But to relieve a rebel, fled out of the kingdom, is no treafon: for the ftatute is taken ftrictly, and a rebel is not an enemy; an enemy being always the fubject of fome foreign prince..."

This language clearly connects an act of treason with two things: (a) aiding a foreign power against the sovereign, or (b) aiding an internal rebellion against the sovereign in the sovereign's own realm. It does not speak to aiding an external rebellion against another sovereign, regardless of whether that other sovereign is using the "traitor" sovereign's troops. Indeed, merely killing the king's troops isn't treason -- Blackstone describes the conviction of a killing of the king's messenger (surely equivalent to a troop) for treason as "almoft as tyrannical a doctrine as that of the imperial conftitution of Arcadius and Honorius, which determines that any attempts or defigns againft the minifters of the prince fhall be treafon."
7.6.2005 9:57pm
Clayton D. Jones (www):
If "an enemy" is "always the fubject of fome foreign prince," thefe five are off the hook, at leaft according to the hiftorical underftanding, provided we alfo have it, Al Qaeda and its like are not foreign princes within Blackstone's meaning. I rather fufpect, though, that the "High Court of Parliament" under "our prefent gracious Majefty, George III," being prefented the queftion in accordance with the law on dubious cafes, would have no trouble finding they were.
7.6.2005 11:38pm
CharleyCarp (mail):
Does not bin Laden effect a title of nobility? Emir, or something like it?
7.7.2005 12:30am
Alaska Jack (mail):
My God.

Are you all speaking with tongues firmly implanted in cheeks, satirizing the way conservatives portray liberals as morally confused and weak-willed, debating lawyerly minutiae while the gates are under attack? Or are you actually arguing that, in fact, Americans who have committed themselves to armed conflict against our nation should not be charged with treason?

----

OK, in trying to think of an appropriate way to elaborate on the above paragraph I have simply been staring at my keyboard for the last five minutes. I mean, what can one possibly say? How can someone become so lost that even the simplest moral questions become struggles of such magnitude? In the end, all I am left with is to wonder if a country whose success has rendered its inhabitants so soft even deserves to survive.

- Alaska Jack
7.7.2005 4:11am
Paul Gowder (mail):
Alaska Jack: is this instrumentalism from a conservative? Are you saying the original meaning of the constitution should be ignored for your preferred policy outcomes? :-)

In all seriousness, though, there's a difference between a moral question -- of course these people are evil and they need to be charged with whatever we can find -- and a legal one -- can they constitutionally be charged with treason.
7.7.2005 9:08am
Paul Gowder (mail):
Alternatively, if we really want to charge them, we could admit that we've annexed Iraq and incorporated it into our "realm..."
7.7.2005 9:51am
Alaska Jack (mail):
Paul -

Actually, could I ask a favor? I'm a layperson and don't know much about the various schools or theories of constitutional interpretation. (Also, I don't consider myself a conservative, but that's neither here nor there). Do you know of a good, layperson's description of these various competing theories on the web? I would like to educate myself.

It seems to me that a reasonable approach would be to interpret the Constitution in light of what the various ratifying legislatures understood it to mean, in which case a charge of treason seems quite reasonable. However, this is tentative on my part, as I concede to being uneducated in this area.

- AJ
7.7.2005 1:46pm
Paul Gowder (mail):
I don't know that this exactly qualifies as a layperson's description, but Larry Lessig's writing is very clear, and he describes, generally, in the introduction to this article (PDF), the world of constitutional interpretation.

Understand, though, that this is possibly the most hotly contested general issue in law. I may be denounced as the shameless biased Lessig-ite that I am for linking to this article rather than some other interpretation, especially since Lessig goes on to take a very contestable (yet I believe fundamentally correct) position.
7.7.2005 2:36pm
Wince and Nod (mail) (www):
Paul,

Thank you, thank you, thank you. I've been trying to get someone to provide sensible limitations on the living document theory. But I've been trying in the wrong places - on political blogs.

Based on the introduction (I read fast, but not that fast) Lessig's concept of translation appears to dodge the biggest problem with the living document theory so that the Constitution does not mean whatever the Justices say it means. It would also give guidance for troublesome phrases like "cruel and unusual punishment".

However, as someone who is familar with this problem in the context of Bibical translation (actual translation) and interpretation I doubt Lessig can actually get all the way to the nullification of the Commerce Clause, among other Constitiutional phrases which the Court essentially holds as meaningless. (Go here and scroll down to 4 July for a longer, but not exhaustive, list. Mrs. du Toit is having permalink problems.) Most who hold that the Bible is the literal word of God are strongly against ignoring portions of the text. I'm not saying we don't ignore portions of the text, since the Bible is a rather large volume and we are all subject to temptation, but most folks say you can't remove the bits you don't like.

Unlike Judge Bork, who seems concerned about the Court putting new bits in, most of the people I read who are angry at the Court are concerned about things (such as Bork's inkblot) being taken out. And in a document as short as the Constitution, such ommissions are much easier to notice.

There are lots of precedents (and laws) that I believe should be repealed or overturned to restore those present but unaccounted for phrases. There is plenty of room for local, state and federal legislative bodies and to do their sworn duty to restore the Constitution as well. In addition we voters, writers, readers, speakers, listeners and worshippers have a duty to exercise their rights to restore the Constitution as well. If it wasn't obvious, that was a recruiting speech.

I will happily read the rest of Lessig's article.

Yours,
Wince
7.7.2005 5:48pm