pageok
pageok
pageok
Sedition!

I've pointed out before that there have been relatively few governmental restrictions on antiwar and anti-Administration speech over the past five years; and I still think this is so. Nonetheless, here's an incident that strikes me as quite troubling.

In September 2005, a nurse with the Department of Veterans Affairs wrote a letter to an Albuquerque alternative newspaper (the Weekly Alibi) that stridently denounced the Administration; I reproduce it below:

Dear Alibi,

I am furious with the tragically misplaced priorities and criminal negligence of this government. The Katrina tragedy in the U.S. shows that the emperor has no clothes! Bush and his team partied and delayed while millions of people were displaced, hundreds of thousands were abandoned to a living hell. Thousands more died of drowning, dehydration, hunger and exposure; most bodies remain unburied and rotting in attics and floodwater. Is this America the beautiful?

The risk of hurricane disaster was clearly predicted, yet funds for repair work for the Gulf States barrier islands and levee system were unconscionably diverted to the Iraq War. Money and manpower and ethics have been diverted to fight a war based on absolute lies!

As a VA nurse working with returning OIF vets, I know the public has no sense of the additional devastating human and financial costs of post-traumatic stress disorder; now we will have hundreds of thousands of our civilian citizens with PTSD as well as far too many young soldiers, maimed physically or psychologically -- or both -- spreading their pain, anger and isolation through family and communities for generations. And most of this natural disaster and war tragedy has been preventable ... how very, very sad!

In the meantime, our war-fueled federal deficit mushrooms -- and whither this debt now, as we care for the displaced and destroyed?

Bush, Cheney, Chertoff, Brown and Rice should be tried for criminal negligence. This country needs to get out of Iraq now and return to our original vision and priorities of caring for land and people and resources rather than killing for oil.

Katrina itself was the size of New Mexico. Denials of global warming are ludicrous and patently irrational at this point. We can anticipate more wild, destructive weather to occur as a response stress of the planet. We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit. Otherwise, many more of us will be facing living hell in these times.

Now the nurse has seemingly gotten into trouble with the VA, apparently on the grounds that the VA suspects that the letter may have been composed on a work computer. According to the Alibi, "[Berg's lawyers] say that a few days after the letter was published, VA Information Security employees seized Berg's computer at the local VA hospital where she works. At the time, she was told this action occurred because of suspicions that she'd composed the letter to the Alibi on government time, on government premises, using government equipment. According to Bach and Kronen, on Sept. 19, 2005, Berg's American Federation of Government Employees Union representative, Thomas Driber, informed Berg that her letter to the Alibi had been sent through 'VA channels' to the FBI in Washington, D.C. The attorneys say this information was confirmed by one of the union's Washington lawyers during a conference call between Driber, Berg and the union lawyer. (Multiple phone messages left at Driber's office by the Alibi were not answered.)"

What most concerns me is the response of the Chief of the Human Resources Management Service at the VA; in relevant part, it says (emphasis added; I quote from a fax of the memo written by the Chief):

In your letter to the Editor of the Weekly Alibi, you declared yourself "as a VA nurse" and publicly declared the Government which employs you to have "tragically misplaced priorities and criminal negligence" and advocated, "act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit." The Agency is bound by law to investigate and pursue any act which potentially represents sedition. You are reminded that Government equipment is just that, and the Government may apprehend, investigate, use, or permit the use of such at its discretion and direction.

Sedition? As my dictionary puts it, "Conduct or language inciting rebellion against the authority of a state"? Here a citizen is condemning the government and calling for it to be tried, and this is somehow "inciting rebellion"? Please. Either this is a wild overreaction (perhaps based on an unreasonable misreading of "forcefully" as "forcibly," where in context it simply means "effectively">), or -- worse still -- this is a federal bureaucrat treating harsh criticism of the government as somehow criminal. As a First Amendment matter, the letter to the editor is likely protected even against the government acting as employer: It's on a matter of public concern, and I highly doubt that such a letter would so interfere with the effectiveness of the nurse's workplace that this interference would outweigh the First Amendment value of the letter to its writer and to its readers (that's the relevant First Amendment test when the government is acting as employer). Even if it was written on a work computer, which apparently may not be the case here, most government workplaces in practice tolerate light uses of work computers for personal conduct (e.g., sending a personal e-mail, or composing a personal letter). If that's so here, as seems very likely, then concern about supposed misuse of computer resources seems to be just a screen for government bureaucrats trying to suppress arguments that they find offensive.

What's more, talk of "sedition" helps show that the government official's true concern was about advocacy of views he dislikes, and not about control of government equipment -- "sedition" is the name of a crime against the government as sovereign, and not just a subspecies of misuse of government property by a government employee that's punishable by reprimand or firing. And the talk of "sedition" also shows that this particular official has forgotten James Madison's point that "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."

Fortunately, it appears that the nurse has not lost her job, and has gotten her computer back. But I think the incident should make us wonder whether the Chief of the VA Human Resources Management Service is doing his job properly, and with the proper understanding of how the government is constitutionally bound to operate.

Thanks to reader J.D. Knoll for the pointer.

Ex-Fed (mail) (www):
In circumstances like this, I always suspect that we are dealing with the actions of a lone idiot -- one who very probably doesn't know what "sedition" means -- and that the actions of that idiot aren't really indicative of anything larger.
2.13.2006 7:15pm
Eugene Volokh (www):
I sure hope so -- but it's a problem when such lone people are highly placed in government institutions.
2.13.2006 7:49pm
Pyrthroes (mail):
This is the kind of incident that crops up more in union halls than VA precincts. Mde the Nurse is withal a ranting leftist ideologue, attitudinal to the max, but a gentle word of admonition ought to have been sufficient: "Hey, dumbo, use your own machine, and don't do a Mother Sheehan bragging about VA status, as if government employment conferred some special insight or status" (it does quite the opposite). By all means rant and rave, but please on your time, not ours, and --if you would-- not on our own sacred hard-drive, which we reserve only for communications of great pith and moment."

If you truly would prefer not to mulct this largesse of Bush the Evil, why not try cashiering at the coffee shop next door? Guaranteed, you'll get more customers for the drivel you serve up.
2.13.2006 7:56pm
Duncan Frissell (mail):
I suspected vocabulary problems as well. I've frequently encountered conflicts between the legal and popular definition of words. There was that discussion of 'sodomy' with my father, for example.

We've also seen a lot of people in recent years blaming 'The Patriot Act' or terrorism when responding to complaints about official actions that actually had nothing to do with those activities.

Note the signs at financial institutions warning customers that because of terrorism they have to present ID to open accounts even though they've had to do so since the Bank Secrecy Act of 1970 and the Patriot Act made only minor additions to the requirements.

Actually a real sedition charge is a rare honor because the Feds are actually claiming that you are capable (in some sense) of overthrowing the government. What status.
2.13.2006 8:01pm
Dave Hardy (mail) (www):
Sedition -- the charge has such a quaint charm! Which would you rather have?

"In 2006, my supervisors accused me of misusing government property."

"In 2006, my supervisors accused me of penning sedition."

Reminds me of the case of some drunk college students who entered a harbor in the Virgin Islands flying the Jolly Roger. They failed the "attitude test" with the Coast Guard and were charged with piracy (the definition of which includes sailing under piratical colors). In the end, they plead out to it under maritime law rather than statute, so the judge could give them a year's probation.

"Have you ever been convicted of any offense?" "Yes." "What offense?" "Piracy on the high seas." (or "piracy -- the misdemeanor form"). Probably want to show up for the job interview with a parrot on the shoulder. "Arrrgh. Ever bin to sea?"
2.13.2006 8:21pm
Mobius (mail):
There is and has been policy that Government employees have NO right to freedom of speech. Military members are barred from speaking out against, Politicians, Agency heads, or any other governmental organization. Policemen are likewise prevented from making political statements. Sedition is not unheard of, especially when military members, police officers, law enforcement personnel, etc are involved. And yes they are bound by federal, state, and local law to investigate.
2.13.2006 8:39pm
Dr. T (mail):
The Chief of Human Resources Management made numerous mistakes handling this case. (Not surprising: How many good HR people have you met?) He definitely should not have made the statement about sedition, and he should not have interjected his opinions about the nurse's writings.

However, the basic case is correct. I am a VA physician, and I know what is allowable. First, VA employees must complete annual "CyberSecurity" training that discusses how and when government equipment can be used. This training specifically states that employees are prohibited from using government equipment for political purposes or for writing opinion letters. Second, VA employees are allowed to mention their title and place of work in public, but, if expressing opinions, must indicate that those opinions are personal and not representative of the VA. Third, the PC workstation used by the nurse (and "seized" by the VA) was not "her computer." VA employees are told (and repeatedly reminded) that a PC in an assigned office is not "theirs." The computers are controlled by Information Resource Management Services and can be replaced or removed at any time. We are told to store nothing of importance on the PC's hard drive, because it can be swapped or reformatted without warning. I mention this because the article was overly critical on this point. The nurse did not have her computer privileges revoked, her passwords were still valid, and she could use other PCs at the medical center. Removing the computer to investigate improper use was legitimate and not unduly oppressive or punitive.
2.13.2006 8:52pm
afshin (mail):

We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit. Otherwise, many more of us will be facing living hell in these times.


I don't know, in context that sure does sound like it "potentially represents sedition."
2.13.2006 9:38pm
Eugene Volokh (www):
Mobius: If that's policy, it's unconstitutional policy, at least under current law. As I pointed out in my post (and linked to a Supreme Court case as authority), government employees do have First Amendment rights against their government employers.
2.13.2006 9:53pm
Perseus:
Allow me to wax Federalist against Democratic-Republican Madison for a moment: if the people as sovereign elect the government, then who is this nurse employed by the government to libel the duly constituted authorities of the people?

And didn't Jefferson propose in a letter to Madison a free speech/press clause that read: "The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations." By Jefferson's equally republican standard, the nurse's rant (e.g., "Money and manpower and ethics have been diverted to fight a war based on absolute lies!") just might constitute seditious libel.
2.13.2006 10:35pm
Smithy (mail) (www):
Let me think of how to put this delicately...this nurse is a traitor. She's lucky her ass wasn't sent to Gitmo. Sorry, people, but remember we're at war here. Remember, we were attacked on 911. This sort of dissent that we're seeing is despicable if not downright illegal.
2.13.2006 11:04pm
arbitraryaardvark (mail) (www):
In FEC v Furgatch the 9th circuit looked at some language somewhat like what the nurse wrote, and concluded it could only possibly mean to vote against the administration - I always thought sedition was another possible, if unlikely, meaning.
2.13.2006 11:11pm
Noah Klein (mail):
There are some strange comments in this thread. How can someone saying that a person be charged with a crime be seditious. By the very nature that this person advocates for a due process method to deal with this administration demonstrates that they were not advocating the violent overthrow of the government. If the woman used a VA computer, then there are specific penalties for that action. But the comments themselves are not seditious and to argue they are is a frightening move. The fact that we are at war does not mean that people's rights are gone. We may all love this country and not like the actions of the government. For four years while this country was engaged in a CIVIL WAR, there was a Democratic minority that often spoke out against the government. We are not the USSR and we should fear a person expressing a negative attitude toward the government. Our country is strong enough to withstand such criticisms.

Noah
2.14.2006 12:22am
Kipli:
However, the basic case is correct...Removing the computer to investigate improper use was legitimate and not unduly oppressive or punitive.

Huh? You mean taking 'her' computer for a forensic check was called for because she wrote a letter to the editor?

What evidence is there that the nurse used a VA computer to compose the letter? As far as I can tell, the VA only said it had "suspicions" that the computer was used. What were those suspicions based on? There was nothing in the letter itself to indicate whether she used a VA computer, her own personal computer, wrote the letter in longhand, or sent it with dits and dashes flashed via lanterns from a church steeple. Why would the VA (or some of the posters above) think that the letter was written with equipment purchased with our tax dollars?

In fact, from the article in the Alibi we have: "[T]he attorneys say Berg made further inquiries and eventually received a response from the VA's Chief of Human Resources, Mel R. Hooker, who, in a memorandum dated Nov. 9, 2005, allegedly admitted that the VA had no evidence the letter was written on Berg's office computer."

It seems to me more likely that this was an attempt to intimidate an employee for expressing an unfavorable opinion. I seriously doubt that they would have seized her computer if she had written in to praise the President and his Iraq policies. Are letters in support of the administration routinely sent through "VA channels" to the FBI?

And if the head of HR truly felt that this was a possible case of sedition, why didn't he turn it over to the district attorney? Is the head of HR qualified to make a legal determination, based on an examination of the computer?

Perhaps it is standard procedure to investigate any VA employee who has a letter to the editor published. If so, they must be pretty busy people. And wasting my tax dollars to boot.
2.14.2006 12:25am
KMAJ (mail):
Prof. Volokh,

I think, clearly the HR person did not know what he was speaking about. What I found more telling is that the ACLU is only asking for an apolgy and not filing a lawsuit. Why ? On the grounds she violated the Hatch Act and could lose her job. Identifying herself as a VA nurse, without putting a disclaimer on her opinion put her in violation of the VA Employee-Management HandbookVA Employee-Management Handbook guidelines:

45. Prohibited Political Activity:*

a. Violation of prohibition against ... - (7) The Hatch Act Reform Amendments, 5 U.S.C. 7321 through 7326, which govern the political activities of executive branch employees

First Offense: Removal


As well as Standards of Ethical Conduct for Employees of the Executive Branch

So while the VA is, in my opinion, going overboard. The handbook does not offer any other remedy than removal. This nurse has reason to be worried about her job. It is her responsibility to know the guidelines of her employment. I think this is also why the ACLU is not pursuing a lawsuit.
2.14.2006 12:28am
Randy R. (mail):
Apparently, some government officials -- and some people on this thread -- have nothing better to do with their time than criticize a person who actually disagrees with her government. In other words, free speech is great, until you actually use it.

Perhaps if the VA were more concerned with doing its job, ie. providing services to the vets of America, there would be little for people to criticize. By going after an employee -- and supporting those actions -- people have taken is one step closer to a police state. Which, no doubt, is exactly what these people really want.
2.14.2006 12:30am
ADB:
Smithy,

Your comments would make this great country of ours no different than China or Russia when Stalin ruled with an iron fist. Imprisonment for voicing dissent... I shudder to think what kind of country would do such a thing.
2.14.2006 1:02am
Evelyn Blaine:
I really can't see how anyone fluent in English could believe "act forcefully to remove" constitutes a threat of actual violence. Idioms of force and martial metaphors are ubiquitous in political speech, and they almost never involve a call to violence: we speak of a forceful orator, a forceful argument, the forces of conservatism or liberalism, marshalling one's forces for the political fight, a politican's being forced to explain himself, apologize, vote a certain way, or resign -- and it's always perfectly clear that we are not talking about guns and bombs. And if that's not enough, how about these: "I believe that now is the time for all parties of this conflict to move beyond old grievances and act forcefully in the cause of peace" (President Bush to Palestinian President Abbas, 26 May 2005); "Bush Forcefully Attacks Critics of His Strategy in Iraq" (NY Times headline, 11 Nov. 2005); "Rice forcefully rebuts Clarke testimony" (cnn.com headline, 25 Mar. 2004).

I suppose one could, if one wanted, try to practise political hermeneutics on the basis of a reverse principle of charity -- assigning to one's interlocutors the most extreme or negative sense possible, even when it requires straining the ordinary meanings of words -- but I think it would only have the effect of immunizing one preemptively against learning anything.
2.14.2006 1:13am
Kipli:
KMAJ:

Could you be more specific about how she might have violated the Hatch Act? I couldn't find anything in my (brief) perusal of the materials at the Office of the Special Counsel website (www.osc.gov), but I was able to find this booklet, Political Activity and the Federal Employee (pdf file) published by the OSC, which reads:

The courts have held that the Hatch Act is not an unconstitutional infringement on employees’ first amendment right to freedom of speech because it specifically provides that employees retain the right to speak out on political subjects and candidates.

And in a two-page flyer (pdf file), writing a letter to the editor is specifically mentioned as an allowed activity.

As you point out, she did identify herself as a VA nurse, and so (presumably) violated the proscription against using
"his official authority or influence for the purpose of interfering with or affecting the result of an election". (section 7323, "Political activity authorized; prohibitions"). The flyer lists as an example of this activity, "An employee who signs a letter seeking volunteer services from individuals may not identify himself by using his official title."

But I think that's a long stretch, since she did not use her official title. Also, the example in the flyer seems to point to an official attempting to use the weight of his office to achieve some political end. While she was relying on her experiences as a VA nurse to lend credibility to her remarks, I don't see that in the same category as the example.

Do you have other cases in mind that would support the claim that she violated the Hatch Act?
2.14.2006 1:16am
KMAJ (mail):
Here is the section of the Hatch Act, I believe is in force:

Sec. 734.302 Use of official authority; prohibition.

(a) An employee may not use his or her official authority or influence for the purpose of interfering with or affecting the result of an election.
(b) Activities prohibited by paragraph (a) of this section include, but are not limited to:
(1) Using his or her official title while participating in political activity


Her official title is VA nurse and she used it to lend authority/credibility to her political position in her letter, without providing a disclaimer. I am not saying she should be fired, but if the VA wants to adhere to the letter of the law, she can be fired without recourse.
2.14.2006 2:06am
Kovarsky (mail):
Keith Olberman Gave the VA Supervisor That Confiscated His Computer his daily "Worst Person in the World" award.

Apparently he's sick of giving it to O'Reilly.
2.14.2006 2:11am
e:
Mobius wrote: "There is and has been policy that Government employees have NO right to freedom of speech. Military members are barred from speaking out against, Politicians, Agency heads, or any other governmental organization. Policemen are likewise prevented from making political statements. Sedition is not unheard of, especially when military members, police officers, law enforcement personnel, etc are involved. And yes they are bound by federal, state, and local law to investigate."

I think that is much overstated. Military officers are restricted somewhat by the UCMJ (and tradition), but thankfully we've gotten past the days where voting was thought to be too political for a military leaders. I'm almost certain that most VA nurses are civilian government employees. This link may shed some light:

http://writ.news.findlaw.com/commentary/20030619_falvy.html
2.14.2006 2:13am
John Herbison (mail):

Let me think of how to put this delicately...this nurse is a traitor. She's lucky her ass wasn't sent to Gitmo. Sorry, people, but remember we're at war here. Remember, we were attacked on 911. This sort of dissent that we're seeing is despicable if not downright illegal.



Is "Smithy" perhaps Winston Smithy lamenting Hate Week?

The difficulty with quasi-subtle satire in the age of J. Edgar W. Bush is that, as with the Congresswoman's attributing to Dan Quayle (who then had just returned from a tour of Latin America) the quip that he wished he had studied more Latin so that he could have better communicated with his hosts, one can scarcely tell whether the speaker is indeed being subtle or is instead channeling Sean Rushbo O'Reilly.
2.14.2006 2:28am
JamesB:
KMJA her official title is not VA Nurse, that is only a job discription and place of occupation. An actual title would be on the order of Registered Nurse in Post Anethesa Recovery Unit of XXXX VA Hospital.
2.14.2006 6:44am
Kipli:
Here's the rest of the relevant section from 5CFR734

§ 734.302 Use of official authority; prohibition.

(a) An employee may not use his or her official authority or influence for the purpose of interfering with or affecting
the result of an election.

(b) Activities prohibited by paragraph (a) of this section include, but are not limited to:

(1) Using his or her official title while participating in political activity;

(2) Using his or her authority to coerce any person to participate in political activity; and

(3) Soliciting, accepting, or receiving uncompensated individual volunteer services from a subordinate for any political purpose.

Example 1: An employee who signs a letter seeking uncompensated volunteer services from individuals may not identify himself or herself by using his or her official title. However, the employee may use a general form of
address, such as ‘‘The Honorable.’’

Example 2: A noncareer member of the Senior Executive Service, or another employee covered by this subpart, may not ask his or her subordinate employees to provide uncompensated individual volunteer services for a political party, partisan political group, or candidate for partisan political office. Moreover, he or she may not accept or receive such services from a subordinate employee who offers to donate them.

Example 3: An employee may not require any person to contribute to a partisan political campaign in order to win a Federal contract:

I think the examples point to a particular type of offense: using the weight of office for political gain. Again, her use of "as a VA nurse" gives her letter additional credibility, true, but does not call on the reader to take some political action because she is a VA nurse (especially not in the same sense as a superior sending a letter to his subordinates).

It may be that the paragraph (a) above could be read so that she is in violation. I still think that's a stretch and would like to know of cases in which it was read that way by the OSC or the courts.
2.14.2006 8:49am
Smithy (mail) (www):
Keith Olberman Gave the VA Supervisor That Confiscated His Computer his daily "Worst Person in the World" award.


Speaking of moonbats...Olberman is about as nutty as they come. Keep him away from sharp objects.
2.14.2006 8:51am
Nick (www):
The only chance I would see of making this stick is if she was a military nurse (which seems possible if this is a VA hospital). But in that case, she would be court martialed under the applicable laws of the UCMJ... where it is perfectly legal to prevent a member of the military from speaking out against the commander in chief.
2.14.2006 9:34am
TC (mail):
And more proof of Professor Volokh's point that words and their meanings matter -- a lot.


Military members are barred from speaking out against, Politicians, Agency heads, or any other governmental organization.


Officers in the military are prohibited from using "contemptuous words against" the President and a select few other political leaders.
2.14.2006 9:42am
Dswogger:
"We need to wake up and get real here, and vote act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit."

Sorry folks, it doesn't quite interchange well does it? I suspect within the context of the phrase her meaning goes beyond the ballot.
2.14.2006 9:49am
Some Guy (mail):
Actually, the agency is bound by law to investigate potential violations of the Hatch Act, which this woman should be more concerned about. It is illegal to use government resources for partisan political activity, as well as to use your title for advocacy. Since there is no election, and she did not explicitly endorse a candidate, she might be able to keep herself out of jail.

But she WILL lose her job.

Agencies take the Hatch Act very seriously, for good reason. Her union will put on a good show to placate their government employee members, most of whom probably hate President Bush. But in the end, it won't matter, and the union rep knows it. If that woman used her government time and title to jump inot the political arena, she is history.
2.14.2006 10:03am
Kipli:
Actually, the agency is bound by law to investigate potential violations of the Hatch Act, which this woman should be more concerned about. It is illegal to use government resources for partisan political activity, as well as to use your title for advocacy. Since there is no election, and she did not explicitly endorse a candidate, she might be able to keep herself out of jail.

There is no evidence that the nurse used government time or equipment to write her letter. The only question is whether identifying yourself as a "VA nurse" constitutes using your title in the sense proscribed. I have yet to see a good argument that it does.

Perhaps the VA is required to report violations, but not to investigate. The VA employee handbook linked to by KMAJ says specifically "Actions based on Hatch Act violations will be initiated by the Office of Special Counsel." I could find nothing at the OSC site that indicated that simply identifying yourself as a "VA nurse" in a letter to the editor criticizing government policy constituted a violation of the Hatch Act. If I missed something, please point it out to me.

And where does the threat of jail time come from? At the OSC site we find under "Penalties for Violating the Hatch Act":

An employee who violates the Hatch Act shall be removed from their position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual. However, if the Merit Systems Protection Board finds by unanimous vote that the violation does not warrant removal, a penalty of not less than 30 days' suspension without pay shall be imposed by direction of the Board.

You know, I'm starting to wonder about the quality of legal commentary from some of those here. Myself included, and I'm just a lowly mathematician.
2.14.2006 10:23am
Inspector Callahan (mail):
I am not a lawyer, but I know a lot of them post here.

I have a side question - suppose the nurse in question worked for a private business. Would the rules be any different? In most private businesses, an employee could be reprimanded or fired for using company property for personal use.

Are government employees subject to different rules regarding this?

Just curious what the peanut gallery thinks.

TV (Harry)
2.14.2006 11:05am
Bisch:
Whenever I read letters-to-the-editor that contain the phrase "As a XXX I know..." and then rattle off whatever non-sequitor that the writer thinks they know by authority, I stop reading and skip to the next letter. I'm sure I miss a few gems, but on the whole it saves time skipping garbage. I'd encourage you all to try it out.
2.14.2006 11:18am
Bart (mail):
I don't believe that the United States has had a criminal sedition statute since the Sedition Act of 1798 expired during the Adams Administration.

There is some debate as to whether a common law crime of seditious libel still exists, but that is a small minority position among academics.

However, the First Amendment has limited application to the speech of a government employee during his or her work time. Employees owe employers a basic duty of loyalty and courts generally apply employment law to cases where the employee is trashing his or her employer.

A government employee trashing her government employer would be very similar to sedition if a common citizen was uttering the same speech. I can see why the manager might have used that term, even though it would be very un-PC to do so...

It is doubtful that the Hatch Act applies because there is nothing partisan about the letter.

Regulations and internal rules of conduct at the VA would most likely govern this matter.
2.14.2006 11:20am
Anon E Moose:
Prof. Volokh;

There is a song somewhere in that post, isn't there?

Regards,
2.14.2006 11:30am
Perseus:
Voting forcefully would make more sense in the context of punch card ballots: don't want any dimpled or hanging chads.
2.14.2006 12:21pm
NickM (mail) (www):
The third paragraph of her letter (especially the first sentence thereof) can very reasonably be believed to greatly interfere with the effectiveness of her workplace.
[I'll reproduce it here.]
As a VA nurse working with returning OIF vets, I know the public has no sense of the additional devastating human and financial costs of post-traumatic stress disorder; now we will have hundreds of thousands of our civilian citizens with PTSD as well as far too many young soldiers, maimed physically or psychologically -- or both -- spreading their pain, anger and isolation through family and communities for generations. And most of this natural disaster and war tragedy has been preventable ... how very, very sad!

If you were an Iraq War vet in her care, how would you feel about having a nurse who had publicly made it rather apparent that she thought it quite likely you would be spreading "paid, anger, and isolation through family and communities for generations"? While it's a matter of opinion and non-libelous, it will lead people to shun you or treat you differently, and may well affect your willingness to receive any care from the VA.

The charge of sedition, however, is legally nonsense.

Nick
2.14.2006 1:58pm
Duncan Frissell (mail):
Bart, Try:


TITLE 18 > PART I > CHAPTER 115

CHAPTER 115—TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES

§ 2383. Rebellion or insurrection
Release date: 2005-08-03

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Here's a 2001 article on Sedition quoting one Eugene Volokh:

"Teaching people that the government is bad in the abstract is a constitutional right, but once you go beyond to an agreement to commit crimes, that becomes clearly punishable," said UCLA law professor Eugene Volokh.
2.14.2006 2:13pm
Teresa (mail) (www):
First of all, I have to wonder if this nurse has created some friction in her workplace and is being watched by her supervisors. It seems to me that this might be a reason why it was duly noted that she penned a letter to the editor and might answer why she had a work computer confiscated. In this case there would certainly be the trail of log files that kept track of her sending the letter.

If, as one commenter pointed out, this is a policy violation, then she could certainly be reprimanded or even fired for writing the letter from a work computer. This is the case even in the private sector - that's why policies are developed.

Also, if she's writing from work, I have to wonder... did she do it on "company time" as it was noted by the Alibi lawyers, in other words was she doing this instead of doing her work as a nurse? Or had she clocked out and was using the computer to write the letter and send it out? (still a bad idea since the computer is not hers but belongs to the VA) As a former nurse, I would have great difficulty feeling the least bit of sympathy for a nurse who is writing a letter to the editor rather than doing her job!

However, I think the HR person should never have made the sedition statement. That is not something for the VA to determine. If the authorities wanted to make a case - then they could tell us how strong criticism of the government is sedition! (BTW - I think I should add I certainly don't agree with her letter I think she's nearly a raving lunatic - but that doesn't make her seditious) Of course, like the nurse, the HR person may not speak for the VA either. OR this could be a form letter they have for all policy violators and the sedition remark may be part of formal priorly determined wording.

If they don't like her work performance they need to find another way to evaluate that and dismiss her. If she's violated specific policies that she signed off on, as far as computer use goes, then she needs to be disciplined according to the rules set forth in the policy. But as far as I can see, rule violations are not sedition, and neither is criticizing the government (no matter the quality of the criticism) so the HR person is wrong in this matter or the VA is wrong to have such a form letter to send out to policy violators.
2.14.2006 2:18pm
Eugene Volokh (www):
Mr. Moose: You bet there is.
2.14.2006 3:05pm
Gaius Obvious (mail):
Calling for the forceful removal of the President and senior staff seems awfully close to sedition to me. The only legal way to remove them would be via impeachment or elections and neither can be construed as an act requiring the application of actual force. That leaves the only remaining interpretation to mean physical harm. And that would indeed be sedition.
2.14.2006 3:07pm
Mikeyes (mail):
Nick sez:

"If you were an Iraq War vet in her care, how would you feel about having a nurse who had publicly made it rather apparent that she thought it quite likely you would be spreading 'paid, anger, and isolation through family and communities for generations'"?

The effects of war and the current Iraq war on both individuals and families is well known, so what she says in her letter is not revealing any new information that will affect those vets with PTSD. In fact, part of the treatment is to educate about the causes and effects of PTSD and depression. (I might add that the Army has made an effort to make sure that families be aware of this possibilty as a matter of prevention and have conducted a number of studies on the subject. As an aside, the suicide rate amongst active duty soldiers went up signficantly after the war started.) So what she said in her letter is the same information given to the families of deployed service members.

If she had given away information that specifically pointed out individual patients, that would be a violation of federal law.
2.14.2006 3:38pm
The Original TS (mail):
her letter to the Alibi had been sent through 'VA channels' to the FBI in Washington, D.C.

I find this potentially much more disturbing than the idiocy of some VA administrator. Now this doesn't actually assert that the FBI did anything but if the FBI responded with anything other than "Why the hell are you sending us some stupid letter to the editor?," I'm very concerned. The implication is that the FBI has an active interest in completely protected and indeed, fairly banal, political speech. I can't imagine the FBI devotes any of its limited resources to investigating Hatch act violations.
2.14.2006 4:06pm
Some Dumb Law Student (mail):
Just to clarify, Office of Special Counsel is limited in the type of penalty that may be imposed for a Hatch Act violation. Assuming arguendo that this is a violation, the typical OSC response for such activity is an unpaid suspension. Terminations only occur in cases where the individual's behavior was overtly political and the official position was misused for political ends (e.g., running for an elected office on a political party platform and telling one's subordinates to attend a political rally). Using government property to make a comment about politicians (noting that the comments show no explicit party affiliation), is only arguably a Hatch Act violation and is not near the degree of violation for which OSC would pursue termiantion.
2.14.2006 4:47pm
TomCS (mail):
Even outside the US, policy level public employees have limitations on their political activities; broadly in the UK the bar is on activities which could affect the democratic process. But that is in a context where we expect our policy level officials to be dispassionate politically, and thus acceptable as sources of technically sound advice to any bunch of elected politicians. A nurse is so far below the radar that he/she would have no such restrictions, only the normal rights of a citizen.

If you want a real scandal, look at the gagging orders on NOAA scientists which prevent them from joining as scientists in international scientific debate on global warming, if they wish to report findings which are politically inconvenient to their political masters. But they are employed as scientists. (Sad to say the same gagging orders seem to apply in Australia to government employed scientists.)

Does US academia (legal or not) not see an issue here?
2.14.2006 5:28pm
Freder Frederson (mail):
As a former EPA employee, she certainly made a big mistake by indicating that she was a VA employee. Generally, we were told that we were free to right letters to the editor as long as we did not reveal our employer or that if our opinions did touch on issues that were pertinent to the agency, then we were to explicitly state that we were stating our opinions as private citizens and not as agency employees. We were allowed to work on political campaigns although we had to report such activities and could not publically endorse candidates.

As for the use of government computers for private use. The rule in our office is that we could use office computers for personal use during non-work hours as long as it wasn't excessive.

As for the letter itself. Seditious--are you serious? I doubt that anti-sedition laws are even constitutional and if they are, it would take a lot more than encouraging people to "act forcefully" to remove elected officials. At the very least to pass constitutional muster, one would have to be explicitly encouraging armed overthrow of the government and objectively mean it before we would even start think about prosecuting it. Further, I would think that would think that we would at least require some kind of overt act that demonstrated the person was not just some hothead spouting off emails in his mother's basement.
2.14.2006 6:25pm
JosephSlater (mail):
Some folks in this thread really do need to take Eugene V.'s advice and read the Supreme Court's decisions on the First Am. rights of public employees, which say exactly what he says they say. Start with Connick v. Myers (and enjoy the trivia that the "Connick" is the father of musician Harry Connick) and Pickering v. Board of Ed.
2.14.2006 7:35pm
Bart (mail):
Duncan suggested:

Bart, Try:


TITLE 18 > PART I > CHAPTER 115

CHAPTER 115—TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.



Despite the title which slips in the term sedition, this is really the treason statute which added an element or two to the definition of treason written into the Constitution.

In a nutshell, sedition is a citizen's slander of the government. There is no requirement that this slander have any actual effect or provide aid and comfort to an enemy.

However, under the treason statute, a handful of US citizens were convicted after WWII under this treason statute for giving aid and comfort to the Axis by slandering the United States and its war effort by making propaganda broadcasts for the enemy.

The fundamental difference between the two slanders which makes one criminal is providing aid and comfort to the enemy.

This actually raises a fascinating question about whether some of our more rabid bloggers are committing treason by spreading al Qaeda and enemy Iraqi propaganda which slanders the United States and is intended by the enemy and the bloggers to damage the war effort...
2.15.2006 8:52am
JosephSlater (mail):
Bart:

So it's a "fascinating question" to you whether bloggers or others who criticize the government's prosecution of the war could and should be successfully prosecuted for treason/sedition? Thought experiment: should Martin Luther King, Jr. have been tried for treason/sedition for his (extremely critical) comments about the Viet Nam war?

Many of the comments in this thread have been most depressing. What ever happened to the pro-free speech libertarian crowd? E.V.'s original post seemed clearly right and actually pretty non-controversial to me. It's sad we've come to this.
2.15.2006 11:04am
Bart (mail):
JosephSlater (mail:

Bart:

So it's a "fascinating question" to you whether bloggers or others who criticize the government's prosecution of the war could and should be successfully prosecuted for treason/sedition?


To me, the question of when properly protected political dissent tips over into treason is both legally fascinating and very topical.

I am in the middle of a very good book called "Perilous Times" by Geoffrey Stone about the First Amendment during wartime. He does a great job looking at Sedition, but I haven't seen anything yet on the WWII caselaw which upheld speech as treason.

Thought experiment: should Martin Luther King, Jr. have been tried for treason/sedition for his (extremely critical) comments about the Viet Nam war?

Give me some quotes.

I don't see how opinions can be held to be treason. (For example, "Bush is an idiot who mismanaged the war.")

However, publishing false facts about the country or military with the intent to damage the war effort may very well be treason and not protected by the First Amendment. False statements of fact are not generally protected by the First Amendment, although the NYT case gave slander of public figures a measure of protection.

Let me paraphrase one blogger with whom I crossed swords...

He stated that the United States was operating a series of secret prisons where prisoners were being tortured and killed. When I challenged him to prove it, he admitted that he had no proof but that he would say it again if it would cause "You warmongers to lose the war."

Can you come up with a good reason why this kind of propaganda intended to give aid and comfort to the enemy should be protected speech?

Generally, I subscribe to the Market Place of Ideas approach to speech. However, this approach relies on using the truth to battle untruth. In this case, how do you prove a negative when presented with lies concerning US war crimes which never occurred?
2.15.2006 3:03pm
JosephSlater (mail):
Bart:

I'm not good at pasting short links, but here's one speech by MLK on Viet Nam:

http://www.africanamericans.com/MLKjrBeyondVietnam.htm

There's more, of course, from him, and more radical stuff from quite a few folks in the 1960s. Sedition/treason trials?

Is it necessary for you to have demonstrably false facts about a war effort? Something like the defamation test, distinguishing fact from opinion? Would anything that the woman VA employee wrote in her letter count? What if it turns out there *are* secret prisons where people are being tortured and killed, but your interlocuter didn't have evidence of it when he said it? Is it OK to say things that are factually incorrect in *support* of a war?

To what extent, in your opinion, would the prosecution need to prove intent to "damage the war effort"? And what would that mean? Are calls to bring the troops home something designed to "damage the war effort"?

Might we want to have some test to see if the enemy was actually aided, or comforted, in any way? I'm just guessing that nobody we're fighting in Iraq is reading your (or my) blog exchanges and being inspired or depressed by it.
2.15.2006 4:37pm
JosephSlater (mail):
Oh, what the heck: here are some excerpts of MLK's speech on Vietnam linked in my previous post. Sounds like there are some factual-style claims in there, maybe not all were accurate; I'm sure some will say this sort of speech could undermine the troops or give aid and comfort to the enemy. So, MLK in prison for sedition/treason?
----
The only change came from America as we increased our troop commitments in support of governments which were singularly corrupt, inept, and without popular support. All the while the people read our leaflets and received the regular promises of peace and democracy and land reform. Now they languish under our bombs and consider us, not their fellow Vietnamese, the real enemy. They move sadly and apathetically as we herd them off the land of their fathers into concentration camps where minimal social needs are rarely met. They know they must move on or be destroyed by our bombs.

So they go, primarily women and children and the aged. They watch as we poison their water, as we kill a million acres of their crops. They must weep as the bulldozers roar through their areas preparing to destroy the precious trees. They wander into the hospitals with at least twenty casualties from American firepower for one Vietcong-inflicted injury. So far we may have killed a million of them, mostly children. They wander into the towns and see thousands of the children, homeless, without clothes, running in packs on the streets like animals. They see the children degraded by our soldiers as they beg for food. They see the children selling their sisters to our soldiers, soliciting for their mothers.

What do the peasants think as we ally ourselves with the landlords and as we refuse to put any action into our many words concerning land reform? What do they think as we test out our latest weapons on them, just as the Germans tested out new medicine and new tortures in the concentration camps of Europe? Where are the roots of the independent Vietnam we claim to be building? Is it among these voiceless ones?

We have destroyed their two most cherished institutions: the family and the village. We have destroyed their land and their crops. We have cooperated in the crushing of the nation's only noncommunist revolutionary political force, the unified Buddhist Church. We have supported the enemies of the peasants of Saigon. We have corrupted their women and children and killed their men.

Now there is little left to build on, save bitterness. Soon the only solid physical foundations remaining will be found at our military bases and in the concrete of the concentration camps we call "fortified hamlets." The peasants may well wonder if we plan to build our new Vietnam on such grounds as these. Could we blame them for such thoughts? We must speak for them and raise the questions they cannot raise. These, too, are our brothers.

Perhaps a more difficult but no less necessary task is to speak for those who have been designated as our enemies. What of the National Liberation Front, that strangely anonymous group we call "VC" or "communists"? What must they think of the United States of America when they realize that we permitted the repression and cruelty of Diem, which helped to bring them into being as a resistance group in the South? What do they think of our condoning the violence which led to their own taking up of arms? How can they believe in our integrity when now we speak of "aggression from the North" as if there were nothing more essential to the war? How can they trust us when now we charge them with violence after the murderous reign of Diem and charge them with violence while we pour every new weapon of death into their land? Surely we must understand their feelings, even if we do not condone their actions. Surely we must see that the men we supported pressed them to their violence. Surely we must see that our own computerized plans of destruction simply dwarf their greatest acts.

How do they judge us when our officials know that their membership is less than twenty-five percent communist, and yet insist on giving them the blanket name? What must they be thinking when they know that we are aware of their control of major sections of Vietnam, and yet we appear ready to allow national elections in which this highly organized political parallel government will not have a part? They ask how we can speak of free elections when the Saigon press is censored and controlled by the military junta. And they are surely right to wonder what kind of new government we plan to help form without them, the only party in real touch with the peasants. They question our political goals and they deny the reality of a peace settlement from which they will be excluded. Their questions are frighteningly relevant. Is our nation planning to build on political myth again, and then shore it up upon the power of a new violence?
2.15.2006 4:41pm
Bart (mail):
JosephSlater (mail):

Bart:

Is it necessary for you to have demonstrably false facts about a war effort?

Political opinion speech is what the First Amendment was meant to protect. Beyond that, it is impossible for a jury to determine whether an opinion is "false." The first section of the book "Perilous Times" does a really good job of showing you how sedition trials on political opinions during the Adams administration quickly become partisan star chambers...

Something like the defamation test, distinguishing fact from opinion?

Depending on what the elements and defenses you have in mind, I would think that any treason trial would need to have similar defenses of truth and opinion.

Would anything that the woman VA employee wrote in her letter count?

I don't recall any false statements of facts in that letter which could be considered to be aid and comfort to the enemy. She was mostly expressing her low opinion of Mr. Bush and the war.

What if it turns out there *are* secret prisons where people are being tortured and killed, but your interlocuter didn't have evidence of it when he said it?

Interesting question. If truth is an absolute defense to slander, then I suppose later evidence of truth should be grounds for reversing the conviction.

Does anyone know whether a civil judgment for defamation, slander or libel has ever been reversed later based on new evidence that the statement was true?

Is it OK to say things that are factually incorrect in *support* of a war?

By definition, that does not provide aid and comfort to the enemy. If a person slanders the enemy in order to provide support for the war, I don't imagine the enemy is going to find a sympathetic jury in the US (maybe with the exception of San Francisco)...

To what extent, in your opinion, would the prosecution need to prove intent to "damage the war effort"? And what would that mean?

Actually, the element to be proven is whether the statement gave aid and comfort to the enemy.

The prosecution argued and the Supreme Court accepted in the WWII propaganda cases that statements designed to create "defeatism" or otherwise harm the war effort were proof of giving aid and comfort to the enemy. Telling soldiers or their families that the soldiers would all die if they invaded France was considered to be an example of this. Telling soldiers that their wives and girlfriends were cheating on them was another. There were many more examples which slip my mind right now.

Are calls to bring the troops home something designed to "damage the war effort"?

Can that statement be construed as anything else but meant to harm the war effort by denying our military manpower? The groups who hang out by military recruiters and try to convince potential volunteers not to enlist have stated that this is exactly their goal...

Might we want to have some test to see if the enemy was actually aided, or comforted, in any way?

This is not a requirement to prove treason. The question is limited to whether the speech can be reasonably believed to have been meant to provide aid and comfort.

For example, one of the defendants made recorded speeches for the Nazis and at least one of these speeches used as evidence of her treason was not even broadcast. The court held that the aid and comfort was delivered when the speech was made.

I'm just guessing that nobody we're fighting in Iraq is reading your (or my) blog exchanges and being inspired or depressed by it.

I would not assume that. You may have noticed that bin Laden and Zawahiri's recent recorded speeches played on al Jezeera have repeated several of the talking points used on anti-war "documentaries" and blogs. Recently, Chris Matthews observed that bin Laden's last speech sounded almost like a Michael Moore speech. That comment hit a nerve and whipped the anti-war blogs into a state of hysteria...
2.15.2006 5:34pm
Bart (mail):
JosephSlater said:

Oh, what the heck: here are some excerpts of MLK's speech on Vietnam linked in my previous post. Sounds like there are some factual-style claims in there, maybe not all were accurate; I'm sure some will say this sort of speech could undermine the troops or give aid and comfort to the enemy. So, MLK in prison for sedition/treason?


This speech shows how difficult it would be prove a case of treason based on speech alone.

Much of the speech is made up of rhetorical questions as was King's usual method of public speech. While they imply an factual answer which is often untrue, these questions don't actually make a false statement of fact.

The following passage can easily be interpreted as meant to give aid and comfort to the enemy, but is almost all rhetorical questions...

Perhaps a more difficult but no less necessary task is to speak for those who have been designated as our enemies. What of the National Liberation Front, that strangely anonymous group we call "VC" or "communists"? What must they think of the United States of America when they realize that we permitted the repression and cruelty of Diem, which helped to bring them into being as a resistance group in the South? What do they think of our condoning the violence which led to their own taking up of arms? How can they believe in our integrity when now we speak of "aggression from the North" as if there were nothing more essential to the war? How can they trust us when now we charge them with violence after the murderous reign of Diem and charge them with violence while we pour every new weapon of death into their land? Surely we must understand their feelings, even if we do not condone their actions. Surely we must see that the men we supported pressed them to their violence. Surely we must see that our own computerized plans of destruction simply dwarf their greatest acts.

There are a couple of actual statements of fact which are probably demonstrably false, but King may be able to point to some media source which began this false statement of fact.

Here are a couple of those statements which stood out to me...

They wander into the hospitals with at least twenty casualties from American firepower for one Vietcong-inflicted injury.

So far we may have killed a million of them, mostly children.


To me, this speech is a reprehensible and certainly meant to harm the war effort and excuse the enemy. However, it probably doesn't rise to the level of treason in my mind.
2.15.2006 5:51pm
JosephSlater (mail):
Bart:

I appreciate your careful and civil answers to my questions. I await word on whether you think that MLK's speech re Viet Nam would qualify as sedition/treason by your definition. My reading of your test is that it would be, and therefore my conclusion would be that there is something wrong with your test.

As to your previous post, I disagree with you when in these areas:

[me] Are calls to bring the troops home something designed to "damage the war effort"?

[you] Can that statement be construed as anything else but meant to harm the war effort by denying our military manpower?

Well, it means the speaker opposes the war and wishes that the war should stop, probably because the person thinks that the "war effort" is doing more harm than good to the country. That's treason? Or would it have to be combined with some sort of factual statement. What about, "we're creating more terrorists by staying in Iraq, so we should leave"? That's a factual-style statement, and one could argue either way as to whether it's true or not.

Also, I'm confused as to the following:

[me] Might we want to have some test to see if the enemy was actually aided, or comforted, in any way?

[you] This is not a requirement to prove treason. The question is limited to whether the speech can be reasonably believed to have been meant to provide aid and comfort.

That seems to me to contradict what you said earlier, in this exchange:

[me] To what extent, in your opinion, would the prosecution need to prove intent to "damage the war effort"? And what would that mean?

[you] Actually, the element to be proven is whether the statement gave aid and comfort to the enemy.

So I ask again, does the prosecution, in your opinion, need to prove (i) that the statement was *intended* to comfort the enemy, or (ii) whether the statment actually *did* comfort the enemy, or both (i) and (ii)? And, except in unusual cases, how would the prosecution prove it?

Finally, I'll say for the record that I thought the Matthews comment about Moore was deplorable, but obviously you disagree and that's another issue.

I'm off now, but would be happy to continue this tomorrow.
2.15.2006 5:54pm
JosephSlater (mail):
Bart: I posted before reading your analysis of MLK's speech. I think you are working hard to avoid the result that his speech would be treason per your definition, but I'm not convinced that it isn't. Which again, leads me to wonder about your definition.
2.15.2006 5:57pm
Bart (mail):
JosephSlater (mail):

Bart:

I appreciate your careful and civil answers to my questions. I await word on whether you think that MLK's speech re Viet Nam would qualify as sedition/treason by your definition. My reading of your test is that it would be, and therefore my conclusion would be that there is something wrong with your test.

Bart: I posted before reading your analysis of MLK's speech. I think you are working hard to avoid the result that his speech would be treason per your definition, but I'm not convinced that it isn't. Which again, leads me to wonder about your definition.


Frankly, I don't have a definition worked out for you concerning when treason might apply to speech. Unlike some of the other issues we have explored here, treason convictions are very rare and the courts are often vague about the tests.

I am sure that it should not apply to opinions.

I am also sure that it should not apply to statements of truthful facts.

That leaves false representations of fact.

The WWII cases spoke about enemy propaganda, which is usually a mixture of truth and falsehood designed to harm the war effort of the United States and its allies.

Here is a good survey of the WWII case law which has applied the treason statute to propaganda speech...



The author is a professor who is disturbed about the entire concept of applying the treason statute to speech and attempts to factually limit the Supreme Court and Courts of Appeal decisions to cases where the traitor is directly employed by the enemy.

However, direct employment by the enemy has never been a prerequisite for treason. If you act on your own initiative to provide aid and comfort aren't you even more of a traitor than one who has to be paid by the enemy?

Therefore, I attempted to answer your hypothetical with a vague test that the speech has to be a clear and knowing false representation of fact which can reasonably be considered aid and comfort to the enemy.

I think the King speech skates real close to this standard. The entire thing is clearly meant to give aid and comfort to the enemy by attacking our war effort and excusing the massive enemy war crimes in that war. However, finding clear and knowing false representations of fact which can be proven beyond a reasonable doubt in a capital case is much more difficult.

As to your previous post, I disagree with you when in these areas:

[me] Are calls to bring the troops home something designed to "damage the war effort"?

[you] Can that statement be construed as anything else but meant to harm the war effort by denying our military manpower?

Well, it means the speaker opposes the war and wishes that the war should stop, probably because the person thinks that the "war effort" is doing more harm than good to the country. That's treason?


I didn't use the word treason concerning that hypo and instead answered your question with another question because I didn't have time to think through all the permutations while at work.

Let's try to think this through now that I am at home...

I was a combat veteran of the Persian Gulf War where I served as an infantry platoon leader before I became a lawyer. My politics are generally libertarian, except in military matters, where I am a complete hawk. Those are the prisms through which I view this issue...

My thinking is that war, perhaps more than any other decision, needs to be thoroughly debated before Congress makes a decision and votes to authorize force or declare war.

However, once the Republic has made its decision, voted to send its sons and daughters into combat and then deployed them, they owe those soldiers a duty to seek only victory. Once your soldiers have started to pay the cost of war in blood and trauma, victory is the only acceptable outcome or those soldiers have died, been wounded or suffered the trauma of war in vain.

Therefore, the debate about whether to go to war should end after the People have voted through their representatives to go to war and the People need to support the troops.

The debate should then shift to how best to win the war. Retreat or surrender are simply not options and represent a betrayal of the sacrifices of the deployed soldiers and their families.

I do not know if our People agree with those principles, but that is the thinking of this veteran.

Under such a social compact, speech attacking the war effort with the intent of causing the nation to retreat its military and forfeit the war is aid and comfort to the enemy.

However, as I discussed above, I believe that the First Amendment protects opinions and truthful statements of fact, even if they are intended to and in fact harm the war effort.

That leaves knowing false statements of fact which can be reasonably assumed to provide aid and comfort to the enemy as a possible ground for treason.

Therefore, merely calling for the troops to come home, although a betrayal of those troops, probably does not rise to treason.

[me] Might we want to have some test to see if the enemy was actually aided, or comforted, in any way?

[you] This is not a requirement to prove treason. The question is limited to whether the speech can be reasonably believed to have been meant to provide aid and comfort.

That seems to me to contradict what you said earlier, in this exchange:

[me] To what extent, in your opinion, would the prosecution need to prove intent to "damage the war effort"? And what would that mean?

[you] Actually, the element to be proven is whether the statement gave aid and comfort to the enemy.


I am sorry if I wasn't clear. Allow me to quote a passage from the paper linked above to answer your question...

D. “Giving them Aid and Comfort”

Judicial interpretation of the treason clause’s laconic reference to “giving them Aid and Comfort”86 leaves no doubt that the phrase includes any expression that helps an enemy’s struggle against the US. The Supreme Court has defined “aid and comfort” very broadly, saying that it includes any “act which strengthens or tends to strengthen the enemy of the United States and which weakens or tends to weaken the power of the United States to resist or to attack its enemies."88 The Court’s dictum plainly approves of extending that definition to acts such as “making a speech critical of the government or opposing its measures . . . .” Lower courts have consistently followed that lead to hold that creating anti-U.S. propaganda for enemies of the U.S. qualifies as “giving them Aid and Comfort” under the treason clause.

Given that an expression can qualify as aid and comfort under the treason clause, it remains only to determine how much aid and comfort an expression must give enemies of the U.S. to qualify as treasonous. The answer, in brief: very, very little. Because aid and comfort must be shown by an overt act, no mere mental state can support a charge of treason. Beyond that, however, nearly any expression could give aid and comfort to enemies of the U.S. An expression need not even reach its intended audience to establish the “aid and comfort” element of treason. As case law demonstrates, it suffices if the expression merely aims to help enemies of the U.S.

In Haupt v. United States, the Supreme Court held that even an ultimately
fruitless attempt to help an enemy of the U.S. could suffice as proof of an overt act rendering treasonous aid and comfort. Defendant Haupt, knowing of an enemy saboteur’s hostile intentions, assisted his attempt to win employment at a company manufacturing optical components for the U.S. military. Federal officials apprehended the saboteur shortly thereafter, completely thwarting his hostile mission. Nonetheless, the Supreme Court held that Haupt’s act supported the charge of treason because it “aided
an enemy of the United States toward accomplishing his mission of sabotage. The mission was frustrated but defendant did his best to make it succeed.”

The court in Chandler v. United States extended that precedent to encompass ultimately futile acts treasonous expression. Assessing the materiality of proof only that defendant Chandler had made German propaganda recordings for later broadcast to the U.S., rather than proof that those recordings actually aired in the U.S., the court held that it makes no difference how many persons in the United States heard or heeded Chandler’s broadcasts. It does not even matter whether the particular recordings . . . were actually broadcast. Chandler’s service was complete with the making of the recordings, which thus became available to the enemy to use as it saw fit.


That is the law as I understand it.

Finally, I'll say for the record that I thought the Matthews comment about Moore was deplorable, but obviously you disagree and that's another issue.

Why?

Once you remove the obvious references to al Qeada and its latest threats and request for a ceasefire and leave only the criticisms of Mr. Bush and our country, please tell me how these criticisms differ from what comes out of Michael Moore's mouth on a regular basis. bin Laden never used to speak this way. Where do you think he learned this from?
2.15.2006 9:36pm
JosephSlater (mail):
Bart:

Again, I appreciate your careful and civil tone. I hope you won't think that I'm dodging too many issues if I try to sum up our differences.

Personally, I feel differently than you do about the issue of "once the country has made the decision to go to war." I think that, over the course of human and even American history, many to most wars were mistakes. Yes, I'm glad we were involved in World War II, and I'm glad the north won the civil war, but in my opinion (and the opinion of many others), Viet Nam was a mistake, World War I generally was a horrific disaster, etc. So I think it's very important that anti-war voices be allowed. And the vast majority of anti-war voices were not *intended* to "give comfort to the enemy" but rather were intended to try to get America to do what was, in the speaker's opinion, right for the well-being of our country. But as you say, such statements could pretty much always be taken as "comforting" the enemy, especially if we take your test that "comfort" doesn't have to be proven.

So, I disagee with the idea that anti-war speech that may contain factual style statements that aren't true is arguably treasonous. I note again that MLK's speech really does constitute treason as you have tentatively defined it, although I understand that you are still working through this.

Finally, I think it's sad that we have come to the point where opposition to a war that in many ways is not going well, that was fought on what now appear to be any number of false pretenses, etc., could be seen as treasonous. It's a tribute to the Republican's spin machine, I suppose -- opposition to us threatens your security -- but it's not good for the country.
2.16.2006 10:09am
Bart (mail):
JosephSlater (mail):
Bart:

Again, I appreciate your careful and civil tone. I hope you won't think that I'm dodging too many issues if I try to sum up our differences.


Not at all. I also appreciate your civil and considered posts. When I discuss free speech during wartime on other forums, what results is usually a shouting match...

Personally, I feel differently than you do about the issue of "once the country has made the decision to go to war." I think that, over the course of human and even American history, many to most wars were mistakes. Yes, I'm glad we were involved in World War II, and I'm glad the north won the civil war, but in my opinion (and the opinion of many others), Viet Nam was a mistake, World War I generally was a horrific disaster, etc. So I think it's very important that anti-war voices be allowed. And the vast majority of anti-war voices were not *intended* to "give comfort to the enemy" but rather were intended to try to get America to do what was, in the speaker's opinion, right for the well-being of our country.

In my suggested compact between the soldiers and the people of the Republic who send them to war. I was trying to strike a compromise the necessity of thorough debate on the issue of whether to go to war and loyalty to the soldiers who you send to war.

After you go to war and the dying has begin in the effort to win that war, how is it in the best interests of the country to lose the war?

Let us assume that Vietnam was a mistake because the cost of the war was not worth the objective of keeping the North from conquering the South. However, wasn't that cost even heavier because the antiwar movement achieved its goal and we lost the war?

But as you say, such statements could pretty much always be taken as "comforting" the enemy, especially if we take your test that "comfort" doesn't have to be proven.

I share your unease with the standard of proof allowed by the WWII court. I believe that such speech needs to be publicly communicated in some way before it can be considered to be effective. This is a requirement for simple civil defamation. How can it not be a requirement for treason?

Finally, I think it's sad that we have come to the point where opposition to a war that in many ways is not going well, that was fought on what now appear to be any number of false pretenses, etc., could be seen as treasonous. It's a tribute to the Republican's spin machine, I suppose -- opposition to us threatens your security -- but it's not good for the country.

I think we agree in part and disagree in part...

I have no problem with speech which criticizes the methods used to achieve victory. It is one of the strengths of a Republic with free speech that the citizenry can come up with the best possible solution through public debate.

However, I think that the citizenry which sent the soldiers to war, whether they personally supported the war or not, owe the soldiers they have sent to fight and die a duty of loyalty to support the mission on which they sent the soldiers.

In order for a Republic to both maintain its freedom of speech and win wars, I think that partisanship needs to stop at the shoreline.

Thanks for the conversation...
2.16.2006 11:27am