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Al-Qaeda Adam, Axis Sally, and Tokyo Rose:

Adam Gadahn, who has become a propagandist for al-Qaeda, is being indicted for treason (as well as for providing material support for terrorist organizations). News accounts that I've heard suggests that the indictment is based precisely on what he's said, not on any physical assistance that he's provided. If he acted with the intent of helping al-Qaeda in its war against us, and if his overt acts can be proven with the testimony of two witnesses (or an in-court confession), then his actions would be treason. But what about the First Amendment?

Interestingly, the closest analogy here seems to be the post-World War II prosecutions of Axis Sally and Tokyo Rose, who were U.S. citizens who acted as propagandists for the Nazis and the Japanese. (As I understand it, Tokyo Rose was eventually exonerated on the grounds that she acted under duress, but that's not important to the legal analysis here.) Consider the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this "Vision of Invasion" broadcast while working for the Nazis:

This program was a radio play of an hour's length broadcast in the month before the Allied invasion of Europe. The scenes alternated between soldiers on a ship in the invasion and the home of an American soldier. The ship is sunk, the soldier is killed and he appears in a dream of his mother. The general theme is expressed in the following colloquy between the American mother and father:

"Mother: But everyone says the invasion is suicide. The simplest person knows that. Between seventy and ninety percent of the boys will be killed or crippled for the rest of their lives.

"Father: What can we do about it?

"Mother: Bah. We could have done a lot about it. Have we got a government by the people or not? Roosevelt had no right to go to war."

Witnesses who participated in the broadcast testified that the purpose was to prevent the invasion of Europe by telling the American people and soldiers that an attempted invasion would be risky with respect to the lives of the soldiers.

The court of appeals upheld Gillars' conviction, including against a First Amendment objection; the Supreme Court did not review the case.

It seems to me there are several possible First Amendment rules that could be applicable to this sort of case:

  1. Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. (Not all such speech is punishable under treason law, which requires a purpose of helping the enemy, but perhaps the speech could be punished under some other statute.)

    I think this would be an awful test, because it would punish a lot of important, valuable, and eminently legitimate speech that criticizes the war. As I've argued here, "During war as during peace, Americans have a right and responsibility to evaluate their government's actions, and decide whether the actions — or the administration — need changing. To make these decisions we need to hear various views on whether the war is going well, whether we're morally in the right in our actions, and so on. An American during the Vietnam War, for instance, should have had the right to argue to his fellow citizens that the war was unwinnable, that the U.S. should pull out, and that voters should support an antiwar candidate. His arguments and others like his might well have helped the enemy, if they weakened U.S. resolve, made it more likely that the U.S. would indeed withdraw, or emboldened the Viet Cong." Notheless, his speech should have been protected.

  2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."

    I think this too is probably too broad. Perhaps the speaker's intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

  3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. This, though, would be an odd distinction in U.S. constitutional law, given that speech is routinely protected despite being done for money. Most writers, filmmakers, journalists, and other speakers are paid for their speech.

  4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. As I've written here, I think this is probably the best test, and it would cover Gadahn — but I'm not positive it.

  5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view. This test would probably cover Gadahn as well, given that it sounds like al-Qaeda is likely providing his room and board, such as it is, and on a pretty full-time basis.

  6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. Under this approach, Axis Sally, Tokyo Rose, any other American equivalent of the British Lord Haw-Haw, and others would be constitutionally immune from punishment. The Conclusion of Tom Bell's article suggests that this might be the right test, though it also endorses an employed-by-the-enemy test.

I've also written briefly about this before, in this article [PDF pp. 4, 13, 65-66], and on the blog here and here. Tom Bell also has a post on the Gadahn case today.

I'm at a conference starting a minute from now, and won't be blogging until a good deal later, but these are some tentative thoughts on the subject for now.

Related Posts (on one page):

  1. More on Al-Qaeda Adam, Axis Sally, and Tokyo Rose,
  2. Al-Qaeda Adam, Axis Sally, and Tokyo Rose:
curious (mail):
if they catch him, i wonder if it'll be criminal prosecution for treason where the terminological slip that has yielded the phrase "war on terror" might finally be brought short.
10.12.2006 2:23pm
FantasiaWHT:
Can someone explain the distinction between rules 3 and 5? They seem semantically the same to me.
10.12.2006 2:25pm
Fingerprint File (mail):
I guess that in 3, the speaker is paid for the specific speech, even if they are not an employee, whereas in 5, the speaker was not paid specifically for that speech but is otherwise employed by the enemy.
10.12.2006 2:31pm
RMCACE (mail):
Why is no one talking about the constitutional problems with the treason. Art. III Sec. 3:

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

There may be other crimes in his speech. But as I understand it, he has not actually fired a gun or levied war against the US. Maybe there is an argument he is aiding and comforting the enemy with his speech. I am just assuming that the video create more than two witnesses to his acts. I just don't think the constitutionality of the treason charge is an open and shut case. Then again, I have no case law to back up any of my assertions.
10.12.2006 2:50pm
Kim Scarborough (mail) (www):
Did "Aid and Comfort" have a more specific meaning in 1789, or was it as vague as it is today?
10.12.2006 3:04pm
Henry679 (mail):
I guess we are just supposed to assume that the Constitutional meaning of "war" really is a dead letter, huh?

I eagerly await the "strict constructionist" Scotus opinion burying it.
10.12.2006 3:05pm
JosephSlater (mail):
Options 1-3 would be radical and wrong, in that they would seem to leave unprotected core political speech opposing any ongoing war. If the test is "purpose to aid the enemy," couldn't it be argued that speech saying, "this war is a bad idea, we should stop prosecuting it" has, as its purpose, a goal that would "aid the enemy," in some objective sense? And the "being paid for it" criteria of #3 doesn't seem to matter much. If I'm a pundit being paid to give a speech by some school, think tank, or private organization, I should still have the right to speak on political topics. There is a long tradition of opposing wars in this country from political right and left, from religious groups, from various ethnic groups, from folks of various moral persuasions ... all that could be caught by those definitions.

As to #4, what does "coordinating" mean, in this context? Getting some information from the enemy? Planning speeches at particular times? Seems troublingly overbroad. Heck, Bill O'Reilly is suggesting that the ongoing uptick in attacks in Iraq is "timed" for our elections.

I need to think whether I would prefer 5 or 6.
10.12.2006 3:09pm
Jim Rhoads (mail):
The offense "adhering to their enemies" seems broad enough to include mutual promulgation of enemy propaganda alongside Zawaheri dressed in the garb of the enemy.

A video film witnessed by two or more individuals with them sitting side by side spouting their venomous screeds against the "great satan" USA seems to me to be prima facie evidence that the Defendant "adhered" within the meaning of Article III Sec. 3 of the Constitution.
10.12.2006 3:13pm
Visitor Again:
(As I understand it, Tokyo Rose was eventually exonerated on the grounds that she acted under duress, but that's not important to the legal analysis here.)

For the sake of posterity, this recent obituary from the L.A. Times, which I reproduce since it is about to disappear from the content freely available to the public, is a more accurate account of why the woman convicted as Tokyo Rose was pardoned.

IVA TOGURI / 1916-2006
Convicted as 'Tokyo Rose,' She Later Received Honors
By Valerie J. Nelson, Times Staff Writer
September 28, 2006


Trapped while visiting Japan at the start of World War II, U.S. citizen Iva Toguri became known to millions by a radio handle she never used: Tokyo Rose, the "siren of the Pacific" whose broadcasts were meant to demoralize American servicemen fighting in the Pacific theater.

But there was one problem: A single Tokyo Rose didn't exist. U.S. servicemen branded any English-speaking female radio broadcaster of Japanese propaganda with the name, and there were at least a dozen.

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Forces under Gen. Douglas MacArthur's command and the U.S. Justice Department independently concluded that Toguri had committed no crime. Yet the Los Angeles native was the only Tokyo Rose to be prosecuted. She was convicted of treason in 1949 and served more than six years in prison.

Two decades later, journalists revisited her story and helped clear her name, painting her as a victim of racism and wartime hysteria.

"They wound up prosecuting the myth instead of the person," said Bill Kurtis, the broadcast journalist whose 1969 documentary for CBS, "The Story of Tokyo Rose," first told Toguri's side of the story.

Toguri, who received a presidential pardon in 1977, died Tuesday of complications of old age at Advocate Illinois Masonic Hospital in Chicago, said Barbara Trembley, a family spokeswoman. She was 90.

She had lived to see herself hailed as a hero by former servicemen who wanted to right "a grotesque miscarriage of justice," said James Roberts, president of the World War II Veterans Committee.

At a private ceremony in January in Chicago, Toguri wept when she received the veterans' Edward J. Herlihy Citizenship Award — named for the radio broadcaster known for narrating World War II newsreels.

She called it "the most memorable day of my life."

Those who tell her story like to point out that she was born on the Fourth of July, 1916. Raised by Japanese immigrants in a predominantly white neighborhood in Compton, she spoke almost no Japanese. She attended a Methodist church, was a Girl Scout, loved big bands and hated sushi.

A month after graduating from UCLA with a degree in zoology in June 1941, she was sent to Japan to care for her mother's dying sister. Her mother, who was too ill to travel, died the next year on her way to a Japanese American internment camp. Near the end of Toguri's planned six-month stay, Japanese forces attacked Pearl Harbor on Dec. 7, 1941.

Stranded, and classified as an enemy alien, Toguri was constantly harassed by the Japanese government. Taunted by neighbors for harboring an enemy, her relatives asked her to leave.

She asked Japanese authorities to imprison her with other American nationals, but she was eventually forced to work on the English-language "Zero Hour," a Radio Tokyo show staffed by Allied prisoners that aired from 1943 to 1945.

"It was not propaganda, so to speak. It was produced by POWs for POWs and their parents," Kurtis said. "Her voice sounded like an American teenager, and that's what they wanted."

The only radio alias Toguri used was "Orphan Ann" because she often said during her broadcasts that she was an announcer who had been orphaned in Tokyo by the war. She performed comedy skits and introduced newscasts.

Three POWs with previous broadcast experience were her co-workers, and they promised to try to avoid spreading propaganda by delivering the broadcasts in such a farcical way that they wouldn't be believed. As they became friends, she risked her welfare for them, purchasing food and medicine.

As the war went on, she married a Portuguese national, Felipe d'Aquino, who worked at another radio station.

After Japan's surrender in August 1945, the American press descended on Tokyo, intending to find Tokyo Rose. Two American journalists offered $250 to anyone who could identify the radio broadcaster, and a former employee of Radio Tokyo pointed to Toguri.

American military police arrested her, but an investigation found no grounds for the charges of treason and aiding the enemy. After a year, Toguri was released and she petitioned to return to the United States.

Back home, a myth of war had gone Hollywood.

The 1946 movie "Tokyo Rose" presented the title character as a sultry, malevolent traitor who taunted American soldiers. Commentator Walter Winchell crusaded to have Toguri rearrested, unleashing a series of radio broadcasts attacking the attorney general for "laxness" in dealing with the case.

Pressure steadily built on the administration of President Truman to "make an example of somebody" in 1948.

As Toguri said in 1976 of her role as a postwar scapegoat, "It was eenie, meenie, minie … and I was moe."

Secretly arrested in Japan, she was sent to San Francisco and tried on eight counts. The 13-week trial cost $750,000, which was then reported to be the most expensive trial in U.S. history.

After she was convicted on one count of treason, jury foreman John Mann said he would regret the verdict for the rest of his life.

Her offense boiled down to two sentences that she allegedly uttered on the radio: "Orphans of the Pacific, you are really orphans now. How will you get home now that your ships are sunk?"

Her attorneys argued that the statement was not intended seriously and could not possibly have been taken that way, since the Allies had just won a major sea victory. Journalists have questioned whether she ever uttered the words.

Sentenced to 10 years, Toguri served six years and two months in a West Virginia federal prison. After her release in 1956, she was fined $10,000.

Her husband, who had come to San Francisco for the trial, was forced to sign a statement that he would never try to reenter the U.S. He divorced her in 1980.

After moving to Chicago, where relatives had resettled, she worked in the imported Japanese goods store her father had opened after the war.

She maintained a Greta Garbo-like silence about her past until she was contacted by Kurtis, then a young reporter at a local CBS affiliate. Her first post-prison interview became "The Story of Tokyo Rose."

"When you separate out fact from myth, why, their case falls apart," Kurtis said. "In this great admiration we have for the greatest generation, Iva Toguri should be included in those patriots loyal to America."

Asked about patriotism in the face of such adversity, Toguri often quoted her father's admonition: "A tiger doesn't change his stripes."

Another journalist, Ron Yates, became intrigued by the story while serving as Tokyo bureau chief for the Chicago Tribune. During a golf game, he asked a friend who had worked for Radio Tokyo about Tokyo Rose.

"He said, 'She was convicted on really bad testimony.' I said, 'What do you mean?' " Yates told The Times on Wednesday.

His friend handed him the phone numbers for the two witnesses whose testimony had led to Toguri's conviction.

"They said, 'I think it's time for us to come clean,' " Yates said. "They said they were coached for two months every day before the trial began. That kind of blew me away."

The two former Radio Tokyo employees admitted they had perjured themselves under heavy pressure. Yates wrote a series of articles in 1976 that made a powerful case for Toguri's innocence.

A "60 Minutes" broadcast on the case, reported by Morley Safer, was shown in early 1977.

In one of his last official acts in office, President Ford pardoned Toguri and restored her citizenship.

Several years ago, Toguri invited Yates to dinner.

"She sat across from me and said, 'I always wanted to meet you and thank you. If it wasn't for you I'd still be a criminal,' " Yates recalled Toguri saying.

"It was journalists who got you into trouble," he replied. "And a journalist who kind of got you out."
10.12.2006 3:16pm
Steve:
Any minute now, the segment of the commentariat who believe that #1 doesn't go far enough will show up.
10.12.2006 3:16pm
Master Shake:

(As I understand it, Tokyo Rose was eventually exonerated on the grounds that she acted under duress, but that's not important to the legal analysis here.)
My understanding is that it had more to do with her conviction being based on perjured testimony, and that there was no actual evidence (or likelihood) that she had engaged in treason. She died being considered somewhat of a heroine.
10.12.2006 3:16pm
Jiffy:
Why not take speech out of it by concluding that it is treason to be employed by an enemy during wartime (ie., "adhering to")? Seems like that would include anyone in category 5 but potentially avoid the free speech issue.
10.12.2006 3:18pm
Steph (mail):

Did "Aid and Comfort" have a more specific meaning in 1789, or was it as vague as it is today?


Actualy as vague as it was in 1351. The constitutional limits on treason come from the british statue on treason of that year. (25 Edw. III St. 5 c. 2). Though of course it is translated from the norman french.

The link to my post is here here
10.12.2006 3:20pm
Redman:
Under most of these 'rules' Jimmy Carter is in big trouble.
10.12.2006 3:20pm
Commenterlein (mail):
Visitor Again,

Thank you for this very informative comment, I just learned something. Good stuff.
10.12.2006 3:46pm
Dave (in NYC):
Under most of these 'rules' Jimmy Carter is in big trouble.

No he wouldn't.

Treason is a specific intent crime. At best, one might argue that Carter, or others in hypo #1, are merely negligent or recklessly indifferent to the fact that their speech or other actions might give aid and comfort to the enemy, but this is not treason.

RMCACE cited the relevant text but misstated the law. "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The two offenses are (i) levying war against the United States and (ii) adhering to the enemies of the United States. Apropos of Kim Scarborough's question, it is "adhering" to the enemy that has alaways been vague in the caselaw. Adhering generally means taking up the enemy's cause, even if you don't actually join the fight by levying war.

Throughout history, the most common ways to adhere to the enemy have involved providing material support, performing espionage and propagandizing on the enemy's behalf. This is what is meant by "giving them aid and comfort" and in the caselaw is sometimes analogized to conspiracy law as requiring an overt act. That is, the government must prove specific intent to adhere to the enemy and an act demonstrating that the accused actually gave aid and comfort. The witness/confession requirement is an added mechanism to mitigate against false convictions.

As far as I know, there is no First Amendment defense to treason. Treason is a Constitutional crime, not a statutory one, so the First Amendment does not trump it. So if the elements are proven: adherence to the enemy, that is a specific intent to join the enemy's cause, and an overt act giving aid and comfort to the enemy for which two witnesses testify or to which the defendant confesses, then it does not matter if the overt act is "political speech". In this case it appears that #2 is closest to correct.
10.12.2006 3:48pm
Visitor Again:
I don't think speech, even if accompanied by employment, payment or other benefit, should ever constitute the basis of a treason charge.

It's highly doubtful it does any actual harm. Traitors like Lord Haw-Haw were widely ridiculed during the Second World War. The U.K. hanged him, but if anything, his broadcasts gave a laugh and a rallying boost to our troops. So what you end up doing is prosecuting and punishing people for bad words, bad thoughts.

Treason charges are highly susceptible to being brought for political reasons. They are sometimes brought during times of hysteria. They are adjudicated against an emotion-laden backdrop at the very least. The dangers to free speech are plain. For these reasons alone, I would require some sort of physical aid and comfort to the enemy for a treason charge. Speech, however, might be used as evidence of a defendant's intent in providing this physical aid and comfort.

Treason charges based on expression were much discussed following Jane Fonda's visit to Hanoi in 1972. Those who favored prosecuting her were largely proponents of the War in Viet Nam; those who opposed it were largely against the war. Any trial would have been a political circus. And it would have revealed all sorts of governmental misconduct, much like the Pentagon Papers trial of Dan Ellsberg and Tony Russo did.
10.12.2006 3:49pm
Colin (mail):
Visitor Again,

Thanks for the repost. NPR's On the Media aired an interview with Kurtis last week or the week before, and included some snippets of Toguri's broadcasts. I think it's worth pulling down the podcast just for that. I meant to see if there were longer recordings available online, but forgot to search. I hate to do it from work; does anyone know if there are easily availble samples?
10.12.2006 4:11pm
Justin (mail):
#6 is the only one I'm truly comfortable with, but I can see how 5 is appropriate. Tom Bell, RCACE, and JosephSlater have accurately summed up why.
10.12.2006 4:16pm
Anderson (mail) (www):
It's difficult to imagine how to prove that Jane Fonda had the *purpose* of aiding the enemy, though it sure looks like she did. Under EV's preferred test, # 4, she would've been guilty of treason.

(What *is* that statute of limitations? None? Beware, Jane!)
10.12.2006 4:24pm
Justin (mail):
BTW, a serious question for Professor Volokh:

If you employ test 4, does the portion "coordinating his speech with the enemy" require specific intent? To put it another way, if he thought he was coordinating with an anti-war group who turned out to be a front for Al Queda, would he be guilty of treason? (I presume that it is a specific intent crime, and thus my hypo defendant would be not guilty even if he spoke only out of love for Al Queda).

A more interesting question would be how one defines enemy. There's no actual declaration of war, and though there was an authorization of military force that was presumably directed against both the Taliban and the Baathist regime, Adam did not coordinate with either.

If one reads Al Queda into the mix of "enemies", then that counts. What about another paramilitary organization operating in Iraq? Does it matter whether they've taken up arms against the US or not? The Iraqi government but not US forces? Just civilians? US allies?

And on a related note, what if a defendant coordinated speech with an organization that was sufficiently an "enemy", but while the defendant knew that organization was hostile to the US, didn't have the requisite factual knowledge to realize it was legally an enemy under the law?

This pandora's box gives me some serious concern about (though surely does not effectively defeat) the #4 position.
10.12.2006 4:25pm
submandave (mail) (www):
I would think the obvious key distinction to be found in the Treason article itself:

"... in adhering to their enemies ..."

It would seem that if a person can be shown to be "adhering" to the enemy, on a financial, philosphical or any other material basis, then speech they perform with the specific intent of aiding the goals of that enemy should constitute treason. In cases of speech involving legitimate dissent, the absence of evidence of adherence to the enemy should suffice to render the speech protected.
10.12.2006 4:33pm
Marcus1 (mail) (www):
Why not just call it the treason exception? If your speech is treasonous, whatever that is, then it's not protected. Trying to decide what's not free speech seems backwards.
10.12.2006 4:40pm
Bored Lawyer:
"adhering to their enemies"

Adhering is a vague term, but so is "enemies." What, exactly constitutes an enemy?

Obviously, a sovereign state against whom Congress has declared war is an enemy by any definition. How far beyond that can the Constitutional provision stretch?

Does it have to be a sovereign state? Any organization? How about organized crime -- is that an "enemy?" Why is Al Qaeda an enemy but the Mafia not?

And how adversarial does it have to be? Did the communist states, against whom we had an adversarial relationship during the Cold War, but with whom we still maintained formal relations, qualify? What about political rivals? Is France today our enemy? Russia? China? Iran?

Food for thought.
10.12.2006 4:42pm
jgshapiro (mail):
Fantasia:

I don't think Fingerprint File is right. I don't think it matters for purpose of the distinction whether the speaker is paid by the enemy for the speech in particular or is paid by the enemy as an employee in general. Either requirement would ensure that you don't accidentally snare someone making a public statement against the war, or a journalist.

I think the difference between #3 and #5 is that #3 does not require that the speaker be paid by the enemy, only that he/she be paid by a third party, rather than making the speech for free. #5 implies that the speaker is being paid by the enemy, and is therefore an agent of the enemy in all respects. (Note: If I am correct, I assume that the word "employee" in #5 would also include independent contractors, so long as they were being paid by the enemy or an affiliate, rather than an unaffiliated third party.)

So, for example, if Sean Penn went to Iraq on behalf of the San Francisco Chronicle and, while there, made a number of statements supporting al Qaeda and opposing the U.S. operation in Iraq, he might fit under #3 because he was paid, but not under #5, because he was not paid by al Qaeda or one of its affiliates. But if he accepted money from al Qaeda or one of its affiliates - whether or not for the purpose of making the statement - he would fit under #5.

Perhaps Professor Volokh could clear this up.
10.12.2006 4:42pm
Anderson (mail) (www):
Here's one I just thought of:

The First Amendment, duh, *amended* the Constitution.

Including the Treason Clause?
10.12.2006 4:49pm
Mark Field (mail):
I think that in order to answer the question, we need to start at the beginning: Aside from its historical roots, why is treason a separate crime? That is, what behavior does it penalize which couldn't be reached by other means?

I honestly can't think of any. If a US citizen actually fights for the other side, s/he becomes subject to the laws of war. Same if s/he provides material aid; doing that probably also violates some "trading with the enemy" act.

The dispute centers really centers on whether we should interpret the phrase "aid and comfort" to include non-material behavior -- in essence, speech. It's not at all clear to me that we want to re-create the Vallandigham case every time we have an enemy. Number 6 seems right.
10.12.2006 4:54pm
J. F. Thomas (mail):
You're on a real slippery slope when a terrorist organization becomes an "enemy" under the constitution. Does that make the KKK or Christian Identity groups or any far right groups that claim the government is a "Zionist Occupying Government" an enemy of the United States and therefore subject to be charged with treason? By that measure could we have charged Timothy McVeigh with treason? The FBI claims enviroterrorists are the greatest domestic terrorist threat. As ludicrous as this is, does that mean that we are going to charge EDF members with treason?

To charge this rather misguided and ridiculous person with treason for doing nothing more than making a few videos is truly frightening. This administration is truly out of control.
10.12.2006 4:55pm
Bored Lawyer:
"Aside from its historical roots, why is treason a separate crime?"

I thought the whole point of the constitutional provision was to limit the definition of treason so that it would not encompass political dissent and criticism.
10.12.2006 5:01pm
J. F. Thomas (mail):
I think that in order to answer the question, we need to start at the beginning: Aside from its historical roots, why is treason a separate crime? That is, what behavior does it penalize which couldn't be reached by other means?

If you look at the history of the founders and their experience with treason prosecutions, the reason it is the only crime that has explicit elements and evidentiary requirements in the Constitution is because they deliberately wanted to set a very high bar for treason prosecutions. They saw how the British abused treason and sedition laws and didn't want the U.S. to make treason easy to prosecute in this country. Treason has rarely been prosecuted in this country and for very good reason. Except for the most extraordinary circumstances, it is the tool of a tyrant.
10.12.2006 5:02pm
jgshapiro (mail):

As far as I know, there is no First Amendment defense to treason. Treason is a Constitutional crime, not a statutory one, so the First Amendment does not trump it.

I don't think that is true; the Constitution restricts the definition of treason under statute to prevent its abuse, but the crime is still defined by statute. See 18 U.S.C. 2381. So Congress cannot expand the definition of treason in a way that conflicts with the Constitution, but the statutory definition is still the crime that a person under which a person would be prosecuted.

Not to mention the fact that later-passed constitutional restrictions, like the First Amendment, could also restrict the definition of treason.
10.12.2006 5:07pm
jgshapiro (mail):
Bad link, let's try again:

Link
10.12.2006 5:08pm
Anderson (mail) (www):
Nice point, JGS, which makes it all the more likely that the First Amendment can and does limit Congress's power to enact a treason statute.
10.12.2006 5:20pm
Marcus1 (mail) (www):
Anderson,

Well, I have reason to believe it took you 8 minutes to think of...

In any case, when we're talking about exceptions to the free speech clause in the first place, I'm not sure the fact that it amended the Constitution answers the question. Maybe I'm being dense, but I still don't quite see the point of searching for a good exception to free speech that's a little bigger than treason so that we can fit treason into the exception. Definitely free speech is an important consideration, but it stills seems the main question is what's treason. Or maybe I'm wrong.
10.12.2006 5:21pm
ringo:
a) the First Amendment says "Congress shall pass no law..." It doesn't say anything about the Constitutional sanctioning of punishing treason, even if that treason is speech (if such exists). So the First Amendment and the freedom-of-speech sacred cow isn't dispositive is it? (or does Congress have to implement the punishment for treason via a statute?)

b) to those who are fairly absolutist on free speech issues, isn't revealing to the bad guys American troop locations and movements nothing more than speech and yet likely treasonous, regardless of whether you are paid or employed by the bad guys?
10.12.2006 5:21pm
ringo:
perhaps a discussion of jurisprudence re: advocacy of violent overthrow of the government would inform a discussion of the extent of free speech protection to treasonous speech?
10.12.2006 5:27pm
abb3w:
Option 5 might also need to be qualified as "knowingly" employed.

Suppose Bin Laden owns (via deeply concealed shell cut-outs) "The Topeka Terrorist Gazette, Inc.", publisher of the epinonymous newspaper. Suppose that J. Quisling Bluecoat, a TTG columnist, writes a column on how President Bush is a doodyhead. Prosecutors claim his intent was to aid the enemy, and can convince a jury of this. They also show Bin Laden's ownership of the company. However, it is provable that discovering such ownership would require an examination of the company records by an expert-witness grade forensic accountant -- which our Bluecoat did not have access to or ability for.

I would also hope that an exception would be carved out by the courts for any speech that could reasonably be construed as in defense of the Constitution. I don't care if the idiot is screaming about "HABEAS CORPUS!!!" because he thinks it will help Al'Qaeda or because he thinks its right; he should be allowed to scream regardless. Any error of action will do more harm to the country than an error of inaction in such case.


I think a more narrow version of test 2 might be better: Speech is unprotected whenever the speaker has the purpose of aiding the enemy and no other primary intent protected by the First Amendment could have been reasonably associated with that speech.

Oh and Anderson: The First Amendment, duh, *amended* the Constitution. Including the Treason Clause?

However, the first Amendment starts "Congress shall make no law...". It's easily arguable that the treason clause, by defining VERY specifically the nature of the offense, is the law (per Article VI), and that for Congress to merely "declare the punishment of treason" is not thereby abridging freedom of speech.
10.12.2006 5:32pm
John Herbison (mail):
What about the "clear and present danger" test? As Judge Learned Hand, and later the Supreme Court, opined in Dennis v. United States, the court would need to determine the gravity of the threatened harm, discounted by the improbability of its actual occurrence, in order to determine whether the speech at issue is or is not protected.

One additional aspect of this situation: according to Professor Bell's post, Gadahn urged viewers to convert to Islam. I seems to me that imposition of criminal punishment for this expression would pose problems under the free exercise clause as well.
10.12.2006 5:36pm
Just an Observer:
While it is interesting to discuss the legal merits of the treason charge against this defendant, remember that he is a fugitive apparently far beyond the reach of U.S. justice right now. It's easier to bring a headline-grabbing indictment when there is no court to make DOJ lawyers prove it. Perhaps they can. Perhaps not.

Notably, they have not made this charge against any other citizens allegedly aiding Al Qaeda (Lindh, Hamdi, Padilla) when they actually were in custody. Padilla was held as a military prisoner for 3 1/2 years without being charged at all.

More realistically, throwing "treason" into this indictment and announcing it now has more to do with firing up "the base" in the upcoming elections than it does with a real court case in the foreseeable future. This administration prefers making its "legal" arguments to the peanut gallery rather than to a judge.
10.12.2006 5:36pm
Dick King:
"Treason is a Constitutional crime, not a statutory one, so the First Amendment does not trump it."

Really? Amendments to the constitution don't trump the clauses in the constitution that they contradict? So even though they ratified the twelfth amendment we're still following Article 2 Section 1 and we would continue to do so if, say, they ratify another amendment for election of the president by popular vote?

-dk
10.12.2006 5:37pm
Mark Field (mail):

I thought the whole point of the constitutional provision was to limit the definition of treason so that it would not encompass political dissent and criticism.


I agree. Assuming that IS the purpose, I see no need for the crime of treason at all. Existing crimes already encompass the behavior the treason provision, properly interpreted, is intended to reach.


Treason has rarely been prosecuted in this country and for very good reason. Except for the most extraordinary circumstances, it is the tool of a tyrant.


Agreed.
10.12.2006 5:48pm
CLS (www):
The story of "Tokyo Rose" is rather complicated but she was a hero. She worked with US prisoners of war who were the actual producers of the show. They picked her because they needed an announcer they could trust. They intentionally used the show to send messages with double meaning to soldiers. They testified on her behalf while the US prosecuters used perjured testimony against her and paid people for testifying against her only. The whole story can be found here.
10.12.2006 5:50pm
CatoRenasci (mail):
'Hanoi Jane' Fonda should have been prosecuted for treason, and probably so should Lieut. John Kerry USNR. Both would likely have been convicted. The post-war writings of the Vietnamese enemy made it very clear that they were giving aid and comfort to the enemy, they are even honored today as friends of the revolution.

Even though there are political risks, I am much less tolerant of treasonous speech than many here: I would adopt test #2 -- if the speaker intends to help the enemy, the speech should be punishable. The problem is with "intention" -- would the usual criminal law means of inferring intent suffice?

As Chief Justice Bryan put it in the Middle Ages around the time the treason statute was first adopted (but not in this context): "the mind of man shall not be tried, for the Devil himself knoweth not the thought of Man" (the quote is in a footnote in Pollack &Maitland)

The coordination test fails: assume a person comes into possession of troop movement information in time of war, and, intending to help the enemy, but without any coordination whatsoever or direct contact with the enemy, publishes the information such that it becomes available to the enemy. I think that's treason and any definition, such as Prof. Volkh's that would exclude that as protected speech is inadequate.
10.12.2006 5:59pm
CatoRenasci (mail):
'Hanoi Jane' Fonda should have been prosecuted for treason, and probably so should Lieut. John Kerry USNR. Both would likely have been convicted. The post-war writings of the Vietnamese enemy made it very clear that they were giving aid and comfort to the enemy, they are even honored today as friends of the revolution.

Even though there are political risks, I am much less tolerant of treasonous speech than many here: I would adopt test #2 -- if the speaker intends to help the enemy, the speech should be punishable. The problem is with "intention" -- would the usual criminal law means of inferring intent suffice?

As Chief Justice Bryan put it in the Middle Ages around the time the treason statute was first adopted (but not in this context): "the mind of man shall not be tried, for the Devil himself knoweth not the thought of Man" (the quote is in a footnote in Pollack &Maitland)

The coordination test fails: assume a person comes into possession of troop movement information in time of war, and, intending to help the enemy, but without any coordination whatsoever or direct contact with the enemy, publishes the information such that it becomes available to the enemy. I think that's treason and any definition, such as Prof. Volkh's that would exclude that as protected speech is inadequate.
10.12.2006 6:01pm
Dave (in NYC):
If someone were solely charged under 18 U.S. Code § 2381 or another statute, there might be a constitutional argument, as the First Amendment says "Congress shall make no law...". But Congress did not make Article III, section 3; the People did. All Congress legislated in § 2381, subject to clause 2 of Art. III, section 3, was the punishment.

It would be difficult to argue that Amendment I was intended to amend Article III, section 3. I suppose one could; the effect of later amendments that don't specifically address the subject matter of a prior constitutional provision is a topic of constitutional interpretation on which I plead a degree of ignorance.

Clearly Amendment XXI by its specific terms repealed Amendment XVIII. Amendment XVI, by its terms, necessarily amended clause 4 of Article I, section 9, though there are still people out there who try to argue otherwise and evade income taxes. But those are cases where the text repealed the prior text or created a clear conflict, and there was contemporaneous evidence of an intent to repeal. Am. Jur. 2d notes that "An amendment repeals or displaces a prior constitutional provision insofar as it expressly abrogates, or is irreconcilably in conflict with, the former provision. Constitutional amendments, if possible, should be harmonized with other provisions of the constitution, and effect given to the whole instrument and to every section and clause wherever possible, but where a new amendment is irreconcilably in conflict with a part of the constitution adopted earlier, the new amendment prevails and supersedes it."

Given the lack of an express abrogation or irreconcilable conflict, as in my examples above or Dick King's snarkier Amendment XII example, and given a rule of construction that favors harmonization of amendments with prior provisions, I see no strong case that the First Amendment amended the Treason Clause.
10.12.2006 6:03pm
J. F. Thomas (mail):
More realistically, throwing "treason" into this indictment and announcing it now has more to do with firing up "the base" in the upcoming elections than it does with a real court case in the foreseeable future. This administration prefers making its "legal" arguments to the peanut gallery rather than to a judge.

Which is despicable and shows this administration's utter disdain for the law and the Constitution.
10.12.2006 6:03pm
Justin (mail):
Treason isn't a "constitutional crime"

"Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

It does two things - it gives Congress the power to criminalize treason (subject to those limitations required by the Constitution). This is much like a very limited Commerce Clause. The second thing it does is put a limit on that power by giving rights to individuals - very specific substantive and due process rights.

Treason is a statutory crime, and Congress is constitutionally prohibited from making the crime include acts other than

1) levying war against the United States
2) giving enemies of the United States aid and comfort in adherence to them.

and requires prosecutors to prsent, in order to secure a conviction,

1) the testimony of two witnesses to the same overt act

or

2) confession in open court
10.12.2006 6:15pm
Justin (mail):
"Which is despicable and shows this administration's utter disdain for the law and the Constitution."

Also, the sky is blue. Anyone who has the power to muster outrage at this administration's utter lack of respect for the office, the government, the nation, or the Constitution, is either a person of absolutely remarkable passion and will, or simply has not been paying attention.
10.12.2006 6:18pm
Jim Rhoads (mail):
JFT:

What part of the Constitution did this administration utterly disdain in indicting a person who appears alongside the main spokesman of al Queda and joins with him in delivering a message encouraging the killing of US citizens.

It cannot be reasonably disputed that this multi-national organization has by word and deed declared war on the United States. It also cannot be reasonably disputed that the now Defendant has joined with i.e. "adhered to" that enemy, and given it "aid and comfort".

This does not seem to me to be such a strain that it could accurately be characterized as showing "utter disdain" for the plain language of the Constitution.

Were that the case, Harry Truman's administration exhibited the same "utter disdain" when it caused Axis Sally and Tokyo Rose to be indicted and, indeed, convicted. I believe the Truman administration made the right decision, and showed true appreciation for the spirit and letter of the Constitution in so deciding.
10.12.2006 6:28pm
Justin (mail):
Jim,

I think the argument was that the deciding factor as to whether to prosecute him under the Treason statute or not (ignoring other ways to prosecute him) was not the situation internally, nor the administration's political or jurisprudential views, but political expediency.

In doing so, the argument goes, they completely ignore the costs of their actions, and in fact could undermine serious treason cases but bringing an absurd case that pushes the judiciary to create holdings which make it harder to commence treason when actual circumstances so call.

Whether one could make a principled case for treason in this instance or not is irrelevant, as the poster was responding to the alleged (and in my view, and in the view of 99% of rational people, clearly correct) actual motivation of the Administration, which is different from the motivation you proffer.
10.12.2006 6:38pm
J. F. Thomas (mail):
It cannot be reasonably disputed that this multi-national organization has by word and deed declared war on the United States.

As much as Al Qaeda may hate the U.S. and wish us harm the idea that it can "declare war" on us in a legal or Constitutional sense (anymore than we can "declare war" on Al Qaeda) is a rather a ridiculous concept. War (in the legal and constitutional meaning of the word) occurs between two sovereigns, not between a country and a international band of ideological terrorists. As noted above, none of the other U.S. citizens who have actually been accused of bearing arms or plotting actual attacks for Al Qaeda have been accused of treason. What has this guy done that has made him so much worse than Padilla or John Lindh.
10.12.2006 6:45pm
Seamus (mail):

So even though they ratified the twelfth amendment we're still following Article 2 Section 1 and we would continue to do so if, say, they ratify another amendment for election of the president by popular vote?



In point of fact, the joint resolution of Congress that proposed the 12th Amendment specifically provided that the text of the amendment would supersede "the third paragraph of the first section of the second article" of the original constitution.
10.12.2006 6:46pm
Anderson (mail) (www):
and probably so should Lieut. John Kerry USNR

See, this is the kind of thing that makes people verrrrry uneasy about prosecuting speech as "treason." It becomes a partisan tool very quickly. "Hey, Howard Dean said we shouldn't be in Iraq! That aids and comforts the insurgents! Arrest him!"

Also, re: the comment above, I think it should be reasonably possible to distinguish relaying classified data from "speech."
10.12.2006 6:56pm
KeithK (mail):
So many things to respond to...

I don't think this issue is question of free speech at all. [Pauses while people scream in disbelief]. The crime here is not that he's saying these things. Sure those statements are "treasonous", but only in the colloquial sense. If he was just some idiot student speaking at Columbia I'd say we should ignore him. The crime is that he is actively working with the enemy to produce propaganda videos. In my mind this is clearly adhering to the enemy and providing aid and comfort. It will have to be proven in court according to the high standards that the Constitution sets, but if the Justice Dept. can (and they seem confident of this according to news reports) then I'm fine with a treason prosecution.

Several people have brought up the "not a declared war" argument. Leaving aside the numerous arguments about whether we ever need a formal declaration of war (Eugene has posted about this before), the Constitution does not require a formal state of war to be in existance for someone to be convicted of treason. Nor should it, since it is clear that someone can commit treason during a time of peace and that nations can have enemies even in the absence of a state of war. That Al Quaida is an "enemy" of the USA is clear from their statements and acts of Congress. So these arguments fall flat in my eyes.

Certanily the First Amendment could trump Article III, Section 3. But Dave in NYC has it right IMO - there's no reason to think that the First was intended in any way to amend the treason clause, except insofar as it outlaws labelling political speech treasonous. As I said before, that's niot what Gadahnis engaging in here.
10.12.2006 6:59pm
dejapooh (mail):
Greetings. You can call me ignorant (in fact, I would probably call myself that), but are we at war? The President declared we were at war with terrorism, but he doesn't have the power under the constitution. Congress gave the President permission to use force, but did not issue a formal declaration of war. Doesn't treason rely on being "at war?" Doesn't holding POW's require a War? What are the international laws? If we in fact are not at war, how does that change the interpretation of our domestic laws.
10.12.2006 6:59pm
Jim Rhoads (mail):
I respectfully disagree, Justin. JFThomas's point was that the indictment was in "utter disregard" of the Constitution. I don't think the evidence supports that point because I believe the indictment is arguably well-founded.

I also believe that someone like the accused is every bit as deserving of indictment as those who have been convicted of like crimes in the past.

Whether or not the indictment is politically motivated seems to me irrelevant if the accused deserves accusing.

I don't see the costs of the action outweighing the benefit of discouraging other fools from imitating this despicable character. If I were a US Attorney, I would be happy to prosecute this clown whatever the "administration" said.

I haven't seen a sound argument here why he should not be prosecuted, but I would like to see one.

But then, maybe I'm just one of the hopeless, irrational one percent:>).
10.12.2006 7:02pm
KeithK (mail):

Whether one could make a principled case for treason in this instance or not is irrelevant, as the poster was responding to the alleged (and in my view, and in the view of 99% of rational people, clearly correct) actual motivation of the Administration, which is different from the motivation you proffer.

Any time you find yourself convinced that "99% of rational people" must agree with you on any political question it's best to go back and reconsider your position. You're probably so caught up in your own preconceptions that you're not analyzing the situation clearly.
10.12.2006 7:05pm
Dave Hardy (mail) (www):
Without trying to define the outer limits of treason--

It does seem to me that making a video, for distribution by people who are shooting at US troops (whether or not they have a nation state on which we could declare war -- assuming that bin Laden's statements do not amount to such a declaration against us), in which the speaker exhorts their fellows to physically attack the US, fits nicely within whatever treason might be.

Is al-Qaeda an enemy? Constitution doesn't require declaration of war for enemy status. A group that calls for destruction of the US and is actively shooting and blowing up American troops, and has killed 2500 American civilians, certainly seems an enemy.

Did he adhere to them? Sure, he joined them.

Did he give them aid and comfort? Sure, he's out there trying to whip up the troops, recruit more, and exhort them to kill Americans.

What more could be do? Send them $25?
10.12.2006 7:08pm
steveh2:
In response to the yahoo suggesting that John Kerry could be charged with treason for opposing the Vietnam War, one could make the argument that by opposing the war, he was actually working in the best interests of the USA, and against the interests of our enemies.

In the present day, the argument can certainly be made that the invasion and occupation of Iraq is in fact giving aid and comfort to our enemy Al Qaeda, and that it is President Bush and his defenders, and not Howard Dean, who should be considered as possible treason defendants.
10.12.2006 7:13pm
Jim Rhoads (mail):
As to a declaration of war, that is not necessary by the language of the Constitution.

Nor is "nationhood" a prerequisite to "levying war" within the meaning of Article III. Otherwise, we could only indict nations for "levying war against" the United States. That, of course, makes no sense. There is no question that al Queda, like, e.g. the Barbary Pirates back in the early ninteenth century, is and has been "levying war" against the U.S.at least since 1993.
10.12.2006 7:40pm
Visitor Again:
Commenterlein:

Visitor Again,

Thank you for this very informative comment, I just learned something. Good stuff.


Glad to pass it along. I was interested in the Tokyo Rose piece not only because her story is a fascinating one in its own right but also because I did quite a bit of research on the history and law of treason in 1972, when it looked like Jane Fonda could be charged. Unfortunately I don't have that research at hand, but I do remember that what struck me was the extent to which treason charges had been brought for questionable ends throughout history and--probably one of the reasons for that--that there appears to be no principled, objective or neutral way of determining when expression constitutes treason and when it constitutes merely criticism or opinion.

I take the view that expression may be constitutionally prohibited, if at all, only on the basis of the harm it produces or the danger it presents. Whether or not the speaker is paid by someone, whether or not he is employed by someone, makes not the slightest difference in this regard. A particular piece of speech produces precisely the same harm, poses precisely the same danger, whether or not the speaker is paid, employed or otherwise benefitted. Make employment or payment by the enemy an offense if you want, but leave expression out of it. Bringing treason charges on the basis of expression is an effort to punish people for having bad thoughts and for expressing those bad thoughts. That is not to say expression may not be used as evidence of intent in a treason prosecution based on material aid and comfort to the enemy; my objection is to charging expression as the offense.


Contrary to Professor Volokh, I believe the reasons for the eventual exoneration of "Tokyo Rose" are entirely relevant to the legal analysis here. Her story is another example of how treason charges have been manipulated for political ends in an atmosphere of hysteria and serves as a warning of what we should be on guard against in determining the proper scope of the treason offense. Why look at things in the abstract when there is history and experience at hand? As Justice Holmes said, a page of history is often worth a volume of logic. The Tokyo Rose story is part of that history to which we ought to pay attention.
10.12.2006 7:44pm
Mark Field (mail):

Constitution doesn't require declaration of war for enemy status.


Several people have asserted this. Do any of you have any evidence, whether case law or historical, to support this for purposes of a treason charge?
10.12.2006 7:45pm
Jim Carlile (mail):
If he has renounced his citizenship already, how would he be subject to any constitutional charge of treason?

I agree that treason charges based solely on speech are troubling. This particular charge looks like a pretextual attempt to punish a foe for thoughts and words.

And if waging "war" is a necessary basis for the claim, when did al'Qaeda declare war on the United States? They're not even a cohesive entity. This all comes off like an ominously dangerous PR stunt.
10.12.2006 7:54pm
Lawstsoul:
What allegiance does Dadahn owe to the U.S. that would render his actions treasonous?
10.12.2006 8:06pm
KeithK (mail):

Several people have asserted this. Do any of you have any evidence, whether case law or historical, to support this for purposes of a treason charge?

Using the always 100% reliable internet source Wikipedia (*snicker*) I quickly came up with several cases where someone was indicted for treason when the nation was not at war. (Entry of Treason, scroll down for USA). The entry says that Aaron Burr was indicted but acquitted in 1807 (link) and several Americans were convicted during the Whiskey Rebellion of 1794 (though later pardoned). Take the Wiki entry with the usual skepticism, of course.
10.12.2006 8:12pm
KeithK (mail):

In response to the yahoo suggesting that John Kerry could be charged with treason for opposing the Vietnam War, one could make the argument that by opposing the war, he was actually working in the best interests of the USA, and against the interests of our enemies.

I completely reject the suggestion that Kerry's actions were in the best interests of the US. But to claim they were treasonous in a legal sense is silly. I think there has to be an element of intent here. Kerry presumably didn't testify before Congress, etc. with the intention of aiding the North Vietnamese. Whether or not he ended up doing so is not only a subjective judgement but beside the point.
10.12.2006 8:16pm
A Zarkov (mail):
Let’s not forget that Mildred Gillars’ prosecutors alleged that she signed an oath of allegiance to the Third Reich, and posed as an International Red Cross worker to record messages from American solders to use as propaganda. If true she went beyond mere speech.
10.12.2006 8:27pm
Mark Field (mail):

I agree that treason charges based solely on speech are troubling.


Just thought I'd add this passage from Blackstone to the mix:

"But now it seems clearly to be agreed, that, by the common law and the statute of Edward III, words spoken amount only to a high misdemeanor, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connexion with other words, and things; they may signify differently even according to the tone of voice, with which they are delivered; and sometimes silence itself is more expressive than any discourse. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed by unreasonable to make them amount to high treason."


I quickly came up with several cases where someone was indicted for treason when the nation was not at war. (Entry of Treason, scroll down for USA). The entry says that Aaron Burr was indicted but acquitted in 1807 (link) and several Americans were convicted during the Whiskey Rebellion of 1794 (though later pardoned).


Yeah, but both of those cases involved the "levying war" clause. Burr was accused of assembling a force for the purpose of detaching some western states from the US and creating a new entity out of them and some portions of Spanish territory. The Whiskey Rebels did take up arms and prevented the courts and sheriffs/marshalls from operating (still a dubious case of treason, but not a "peaceful" event either).

The best case I can think of at the moment was Fries Rebellion [sic], but that was widely seen at the time as an abuse of power. Plus, there was at least a quasi-war with France going on.
10.12.2006 8:31pm
Mark Field (mail):
Ok, I have some evidence to support those who claim that war is not essential to treason. Again from Blackstone, same link as above:

"If a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like. By enemies are here understood the subjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts, without any open hostilities between their nation and our own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving the many assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom, or else in that of levying war against his majesty."

I don't think this is definitive for two reasons. First, the example he uses involves "pirates or robbers" in the case of an actual invasion. Second, the English law of treason was very broad and US law was specifically intended to narrow it. The key question, then, is exactly what ways it would be narrowed.

Also, note that the examples used seem to rule out speech as a form of "aid and comfort".
10.12.2006 9:06pm
AST (mail):
When the Constitution was drafted there was no mass media in today's sense. We now recognize that part of waging war is propaganda, and we've seen how it can affect the morale of our troops as well as the public's support for, and the success of a war. I don't agree with the argument than speech by itself cannot fit the definition because it isn't levying war.

Also, I don't understand why the terrorist threat is not equivalent to war. Terrorism is a tactic of war and the operations by Al Qaeda would be acts of war if carried out by nations. The fact that you claim to represent Islam, but have little or no political authority is no longer a distinction that matters, given events like 9/11, the Cole bombing and the demolition of our embassies. We haven't yet come up with a means to fight enemies like this except through long and patient hunting and destroying them, but that doesn't make it any less war.

I think Eugene has it right with his analysis. I thought that Jane Fonda was guilty of treason when she went to North Vietnam. People have the right to oppose a war, speak against it, and drum up support against it, but when they join the enemy and contribute to their efforts against our country and our troops, it's treason. If it isn't, we ought to just abolish the term.

The idea that freedom of speech is absolute has never made sense to me. It reminds me of the "it's just sex" argument during the Clinton impeachments. Irresponsible sex and irresponsible speech have done a lot of harm to societies, destroyed peace and lives and caused violence and death.
10.12.2006 9:12pm
Jim Rhoads (mail):
Mark:

Don't you see at least a plausible relationship between "pirates" or "robbers" invading the English coast (on the one hand) and the several bands of al Queda operatives illegally entering the US and while there concocting and executing a plot to hijack US planes and crash them into landmarks densely populated by civilian and military personnel (on the other)?

If Blackstone, I believe rightly, includes the former within the concept of enemy, on what legal principle should the latter not be so included?
10.12.2006 9:38pm
Mark Field (mail):
Ok, a little more authority:

"The term ‘enemies,’ as used in the second clause, according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us." US v. Greathouse, 26 F. Cas. 18, 22 (1863) (Field, J. [no relation]). Again, this is not completely definitive because the distinction being made was between citizens of the US in rebellion and foreign powers. Still, it does suggest that everybody had in mind actual foreign nations.
10.12.2006 9:42pm
Mark Field (mail):

Don't you see at least a plausible relationship between "pirates" or "robbers" invading the English coast (on the one hand) and the several bands of al Queda operatives illegally entering the US and while there concocting and executing a plot to hijack US planes and crash them into landmarks densely populated by civilian and military personnel (on the other)?


Absolutely. That's why I quoted the passage. And if a US citizen had participated in 9/11, I have no doubt that would be treason.

The harder question is what to do with someone who joins the "pirates" after the actual "invasion" or who joined before but was not in any way involved in the "invasion". Blackstone used a qualifying phrase -- "who may happen to invade our coasts" -- and I'm wondering whether that's a limitation. I'm inclined to believe it is because otherwise every pirate would have been a traitor. I see no evidence that the common law ever treated them that way.
10.12.2006 9:48pm
Jim Rhoads (mail):
What if:

A. The pirates having happened to invade once are planning other invasions and calling on British citizens to join them and help them to invade; and

B. Citizen X heeds their call and actively works with the pirates to recruit his fellow citizens to the pirate cause.

Is Citizen X a traitor?
10.12.2006 10:12pm
Fred the Fourth (mail):
I would not regard Kerry's testimony in the Winter Soldier matter as treasonous (perjurious, maybe). However, is it not the case that he met with the leaders of the North Vietnamese delegation to (one of) the Paris peace conference(s), while nominally in uniform, and without orders from his command? Soldiers of that period have specifically mentioned that incident to me, in discussions about why they would never vote for Kerry.
10.12.2006 10:30pm
Mark Field (mail):

What if:

A. The pirates having happened to invade once are planning other invasions and calling on British citizens to join them and help them to invade; and

B. Citizen X heeds their call and actively works with the pirates to recruit his fellow citizens to the pirate cause.

Is Citizen X a traitor?


Well that's the issue, isn't it? I don't think we've answered the questions:

1. Did US law incorporate Blackstone's reference to non-governmental actors such as "pirates"?

2. Assuming it did, is speech alone either (a) itself "levying war" or (b) the overt act necessary for "aid and comfort"?

My preliminary view, in the absence of other authority (since I can hardly claim to have researched this thoroughly) is that we should apply some sort of quasi-Brandenburg test in dealing with #2: the recruiting must be likely to have an immediate effect. I'm really just thinking out loud here, but it makes sense to me.

As I said above, it's not clear to me that treason should even exist as a separate and distinct crime. It has obvious potential for abuse and a long, sordid history of abuse. No one has yet given an example of conduct which treason captures but is not otherwise illegal, except speech, which is exactly the cause for concern.
10.12.2006 10:48pm
Marcus1 (mail) (www):
It seems the lurking issue here is the fact that the crime of treason itself conflicts with a lot of general principles of freedom, like speech, association, etc. Plus, it's hard for me at least intuitively to figure out why an America who joins Al Qaeda should be treated categorically differently than someone from another country. I doubt this guy is really any more of an a-hole than Bin Laden or the rest of them, after all.

Plus, you try to extend it logically, but then you think, well, what if the U.S. actually were the bad guys in some struggle at some point? Does being born in the U.S. really commit you to absolutely anything the U.S. does, to the death? I guess that's the theory, but it seems kind of hard to put it up against standard rights or morality based analysis. It almost makes the whole idea of treason seem outdated.

Fundamentally, treason seems like a crime with extreme ties to practicality, almost like the president declaring martial law: a clear evil, necessary only in the most extreme instances. If so, that might make it hard to totally square with other parts of the Constitution.
10.12.2006 10:54pm
jgshapiro (mail):
Jim:

What if: A. The pirates having happened to invade once are planning other invasions and calling on British citizens to join them and help them to invade; and B. Citizen X heeds their call and actively works with the pirates to recruit his fellow citizens to the pirate cause. Is Citizen X a traitor?

Of Course, under test #4 or even test #5.

But what if citizen X denounces the government's actions in combatting the pirates on the ground that it is having the unintended effect of recruiting more pirates, or that the cure is worse than the disease, or that the measures being used to defeat the pirates are imperiling our other non-pirate-fighting interests? What if these denunciations happen through media that could be viewed as propaganda, such as a film like Farenheit 9/11? Would that make the denunciations treason?

Obviously no, but nevertheless: they would be likely to help the pirates (test #1) and might have been made for money like Farenheit 9/11 (test #3); the motivations of the denouncers would be hard to prove but could be mistakenly inferred to be helping the pirates (test #2). The denunciations would not be coordinated with the pirates efforts (test #4), nor would the denouncers be employed by the pirates (test #5).

Coordination seems to be the best test. The idea that someone joining in after the most brutal act (be it the Barbary invasion or 9/11) is exempt from treason charges makes as much sense as saying that an accessory after the fact of a felony is not guilty of a crime. Sure they are. They may not get as harsh a sentence as a principal participating in the actual crime, but they are still an accessory and they may be prosecuted as such.
10.12.2006 11:02pm
Carlton Larson (mail):
For what it's worth, I try to work through a number of these issues in my article, "The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem," published in the April issue of the University of Pennsylvania Law Review, and available on SSRN at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=885584.

(Apologies for being unable to figure out how to create a pass-through link.)
10.12.2006 11:07pm
jgshapiro (mail):

It almost makes the whole idea of treason seem outdated.

This is the interesting question here: do people that objct to treason charges object because they think the crime should be more narrowly defined, or because they object to the very concept of prosecuting someone for treason? Has the concept of national loyalty (even in time of war) become outdated?

Put another way, if Jane Fonda did not commit treason, what else would she have had to do to qualify? What about John Lindh? Was Benedict Arnold not really a traitor, but just someone with a different perspective on the Revolutionary War?
10.12.2006 11:08pm
Evan (mail) (www):
A quick note on Tokyo Rose, she's not the best example to have cited. From Wikipedia:

The name [Tokyo Rose] is associated with Iva Toguri D'Aquino (born Ikuko Toguri, July 4, 1916, Los Angeles, California - died September 26, 2006, Chicago, Illinois), a U.S. citizen visiting relatives in Japan at the start of the war. Unable to leave Japan after the start of hostilities, she took work at the Japanese radio show The Zero Hour.[1] After the war, she was investigated and released when the FBI and the U.S. Army's Counter Intelligence Corps found no evidence against her, but influential gossip columnist Walter Winchell lobbied against her. She was brought to the U.S., where she was charged and subsequently convicted of treason. . . She was given a sentence of 10 years and a $10,000 fine.

[Ron]Yates [reporter]later went on to discover Kenkichi Oki and George Mitsushio, who delivered the most damaging testimony, lied under oath.[2] They stated they had been threatened by the FBI and U.S. occupation police and told what to say and what not to say just hours before the trial.[2] On January 19, 1977, she was pardoned by U.S. President Gerald Ford, who also restored her citizenship.
10.12.2006 11:09pm
The Drill SGT (mail):

Visitor Again, Though Toguri was likely convicted based on false testimony, there is another potential skeleton in her closet hat could have been treasonous. Below is an excerpt from her NYT Obit.


In 1942, she obtained a job with Japan's Domei news agency, monitoring American military broadcasts, and late in 1943 she became an announcer and disc jockey for Radio Tokyo's propaganda broadcasts, playing American musical recordings on the ''Zero Hour'' program beamed to American servicemen.


OK, let's look at what we know.

1. She was a US citizen, not a dual national.
2. she was visiting Japan. So were maybe thousands of other US Citizens. I don't know if they were repatriated, or put into camps, But Ms Toguri clearly in my mind was treated differently than the rest.
3. She first went to work in wartime doing a job that would in today's world be located at NSA. She was monitoring US military broadcasts for intelligence purposes.
4. Domei was an arm of the Japanese government. Responsible for internal and external propganda and intelligence gathering via the news service.
5. Toguri didn't speak Japanese to start with. She did however speak idiomatic American dialect in common with US military personnel.
6. She "monitored US military broadcasts". To what end. She couldn't translate to Japanese well. She could not type in Japanese. What she could do is serve as an intelligence analyst and assist in the analysis of idiomatic American spoken by 20 y/o sailors into more common English for subsequent translation into Japanese.
7. She was what today at NSA would be called a Voice Intercept Analyst.
8. She worked indirectly for the Japanese military. There was no value of the intercept of US Military radio traffic to a legitimate japanese civilian news service.
9. She was an Enemy National, free to move about a country at war, work and get married. She clearly reached an accommodation with the Japanese military that allowed her tremendous privilege.
10.12.2006 11:15pm
Archon (mail):
Whatever happened to "no law..." I'm all for an originalist reading of the Constitution, but that would also mean "no law", not "well generally no law, but some narrow laws are OK".

(Note: I think speech also quite literally meant speech and not other forms of symbolic speech. I also think the First Amendment was clearly meant to apply only to Congress. Almost all state constitutions have some freedom of speech clause, and their courts are free to determine the meaning of those. Also, if Congress would like to restrict the actions of the other branches concerning speech, it can do so by statute.)
10.12.2006 11:35pm
Bleepless (mail):
In WWII, Fascists within the US were prosecuted by the Feds under the sedition section of the Espionage Act of 1917. Foreign-born ones, primarily German-American Bundists, also were denaturalized, then jailed for the duration. There were quite a few draft evasion cases. This was before the Steve Nelson case, so State governments early on got into the act, notably California. There also was an Army battalion in Arkansas composed of Bundists, Silvershirts, NSDAP members and so on. There were other screw-tightenings, too.
10.13.2006 12:02am
Jim Rhoads (mail):
jgs:

I think you are on to something here, especially with your point about Benedict Arnold.

There is definitely a strain of thought expressed in this thread that neither nationality nor "national interest" as expressed by elected representatives should be relevant to any assessment of criminality.
10.13.2006 12:11am
ReaderY:
I believe Proffessor Volokh is missing a potentially crucial distinction -- whether the accused actually collaborated and worked with the enemy. I believe this is an important distinction, because it clarifies whether the aid and comfort given the enemy is direct or indirect.

The act of collaboration is an action independent of speech. One works with the enemy to perform an action that aids the enemy's cause, and is what constitutes the gravamen of treason. Once this established, the fact that the action happens to consist of speech raises no First Amendment concerns, even though the same words, said from home with no collaboration with the enemy, might be constitutionally protected.

In all the treason cases involving speech cited, there was actual collaboration with the enemy, not mere speech.
10.13.2006 12:45am
First time poster, not a legal eagle:
(as the name says, first time poster and certainly not up to the same level of thought as most...)

Treason is a very strange crime to my thinking. The factor that distinguishes it from some other crime is that the individual commiting the crime is an American citizen. If I were to give secret information to an enemy and I am an American then it's treason. If I am a citizen of Denmark then it is espionage.

Since we cannot discriminate on the basis of nationality when hiring someone or renting an apartment to someone, it seems quite strange that there is a law that discriminates on that particular basis.
10.13.2006 12:50am
ReaderY:
Collaboration gives substance to "adhering", so that adherence involves action, not just a state of mind.
10.13.2006 1:00am
Henry679 (mail):
You know, there is an (almost) charming naivete on display here.

Nazi Germany, the Empire of Japan, North Vietnam--these were definite and fixed things (in each case, sovereign nations). There is no definite thing as "Al Qaeda", or not much of one any more. Consider the the 7/7 bombers in London--were they members of "Al Qaeda"? Only if you define "Al Qaeda" to mean "Muslims who commit terrorism against the West", or some other definition that suits your aims. Because in a formal sense, they were no more memebers of the organization personally centered around Osama Bin Laden than George Bush is.

The very fuzziness of these rhetorical constructs should give intelligent people pause about employing concepts like "a member of Al Qaeda" or "aiding Al Qaeda" or such. Yet most people here just toss around such ideas as if Al Qaeda is something as precise and definable as a physical border.

So we have a "war" with "Al Qaeda" (or worse, "on terror") and now were supposed to haul out Blackstone to tell us who is committing "treason". The dangers of this enterprise so clearly outweigh any benefits that whole freaking project should be scrapped. I think the United States government has a sufficeint panoply of charges it can toss at anyone actually committing or assisting genuine terrorists that there is no legitimate need to break out the ax of "treason".
10.13.2006 1:11am
Evan (mail) (www):
The Drill Sgt, I take my response from The American Inquisition by Dr. Stanley I. Kutler, copyright 1982, fifth edition. The book won the 1983 Silver Gavel Award from the ABA. I typed this out myself, all errors mine.

From page 5, from a chapter entitled “Forging a Legend”, “The suspect [Iva Toguri d'Aquino] identified two allied prisoners of war who had recruited her for broadcasting: Major Charles Hughes Cousens, an Australian captured at Singapore, and Major Wallace E. (Ted) Ince, an American, captured at Corregidor. Both had prior radio experience. In affidavits given to army investigators in late 1945 and early 1946, both men testified that the Japanese Army had ordered them to work for Radio Tokyo, that the Japanese Army had ultimate command at the station, that they had enlisted d’Aquino, and that they had done so largely to undermine the effectiveness of the propaganda broadcasts.

He [Cousens] denied that certain incriminating statements allegedly broadcast by “Tokyo Rose” had ever been given on d’Aquino’s program. . . Both Cousens and Ince testified that d’Aquino had smuggled gifts of food and supplies to Allied prisoners, along with truthful war news

D’Aquino’s statements were meticulously pursued and checked by army investigators. . . with the final report from the legal section of army counterintelligence, no significant factual discrepancies appear.”

From pp 6 and 7, “her purpose in participating, she insisted, ‘was to give the program a double meaning and thus reduce its effectiveness as a propaganda medium.’

The statement was forwarded to Washington, where Theron L. Caudle, Assistant Attorney General, Criminal Division, turned it over to Nathan T. Elliff, Chief of the Internal Security Section, for evaluation and recommendation. Elliff’s response in May 1946 was prompt and straightforward: prosecution for treason was ‘not warranted.’

Elliff’s memorandum at the outset attempted to destroy an important misconception. There was no ‘Tokyo Rose,’ he said. The name had never been used by Radio Tokyo or the Japanese.”

From pp 32: “Mrs. D’Aquino was an isolated, relatively insignificant individual who classically confronted political justice. . . [S]he served the professional and political needs of a few relentless lay persecutors who successfully mounted enough pressure to enlist the cooperation of both ambitious and timid bureaucrats.”

Se non e vero e ben trovato
10.13.2006 1:32am
Jim Rhoads (mail):
Well Henry, Blackstone did not have much trouble with pirates. Why should we have trouble with al Qaeda which I believe has shown at least as much cohesiveness as those running under the flag of the skull and crossbones. Especially since the accused in this case was sitting next to Zawahiri (who most rational persons will agree is a spokesman for al Qaeda) and the two of them were singing a close harmony duet.

Fuzzy rhetorical construct? That sounds naive to me. But not particularly charming under the circumstances extant since at least since September 11, 2001.

Let's leave it at this; you and I see the world differently.
10.13.2006 1:33am
Bob from Ohio (mail):
When a family member (a brother say)robs you, you take much more offense than if a mere stranger does it. When a fellow American joins the group that killed 3,000 of his brothers and sisters, that is far more serious to me than if some Saudi is involved.

That is the real reason for treason as a crime.
10.13.2006 2:09am
Steph (mail):
Re Al Qaeda not being a nation. I think of then as being kind of like the the knights templar or knight of St. John. Not that they are moraly equivilent, but they are similar quasi sovergn entities.
10.13.2006 2:57am
jgshapiro (mail):
First Time Poster:

I don't think you understand the crime.

Espionage is espionage, regardless of whether you are a U.S. citizen. If you give our secret information to an enemy (or even to an ally that is not authorized to receive it), you have committed espionage. It doesn't matter if you are a citizen. Chinese spies that stole secrets from the U.S. were and are imprisoned for it.

Compare: If you recruit terrorists for al Qaeda and are Chinese, you are just an enemy combatant or a collaborator. You can be held for the duration of the war as such, but just helping the enemy is not a war crime if you are a foreigner. You can't be jailed for it after the war. If, on the other hand, you are an American citizen and you help the enemy, then you can be charged with treason and jailed for life or even executed.

As for why, see Bob's post above.
10.13.2006 4:48am
Marcus1 (mail) (www):
Bob,

I agree with your reasoning on the purpose for treason. I think there's also a practical difference, relating to the fact that a traitor can be particularly damaging, thus requiring harsher punishment.

Unfortunately, though, the moral clarity is still pretty evasive. With murder, for instance, the morality is extremely clear: you shouldn't kill people, no matter what. I think we can all justify that on a pretty abstract basis, without having to invoke any good guys or bad guys. With treason, though, it seems much more along the lines of you picked the wrong side. Or that people don't have the right to pick sides in the first place, which isn't much more satisfying. It's easy to justify by invoking Al Qaeda and what it represents, but in the abstract, it still seems kind of weird.

I really don't know much about it, but I'd think a "traitor" could probably be treated the same as an upper level enemy. I guess I believe more in the "I was just drafted and serving in my native army" defense than I believe in the "traitor" aggravating factor, although they may have the same effect.
10.13.2006 10:39am
Marcus1 (mail) (www):
I guess I'm thinking of civilians though. If you're in the military or in the government, then it seems much easier to justify.
10.13.2006 10:44am
rosignol (mail):
Yep.

The point of having a criminal act called 'treason' that is only applicable to a particular group is not to punish acts that are otherwise illegal. As others have noted, there are plenty of laws for that.

The point of making treason illegal is to punish betrayal, above and beyond whatever is an appropriate penalty for the act itself.

I am astounded that so many people do not seem to understand this.
10.13.2006 11:23am
Bored Lawyer:
Rosignol:

I too find that astounding. I thought it was obvious that a citizen of a nation owes that nation a duty of loyatly, and that treason, however defined, is a betrayal of that.

That's what make spying by a citizen worse than spying by a foreigner.
10.13.2006 11:52am
Bart (mail):
Professor Volkh:

I would disagree with the use of the extent of the defendant's corroboration with the enemy to determine whether the speech itself is protected under the 1st Amendment. Rather, the questions of fact of whether the defendant intended to provide aid and comfort to the enemy and whether the speech in fact provided such aid and comfort should be left to the jury in a treason trial.

I would suggest that the 1st Amendment should treat propaganda like slander or libel. If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment.

Under this construct, treason would include an American citizen who intentionally broadcasted to two witnesses a statement of fact which he or she knew was false and which he or she knew provided aid and comfort to the enemy.

In sum, this would be a limited version of your Category 2 and would include American citizens providing aid and comfort to the enemy on their own initiative. As to the actual damage done by the treason, I do not see the effective difference between the identical enemy propaganda broadcasted by an American citizen on his or her own initiative or in coordination with the enemy. American citizens spreading lies with the intent to destroy the war effort and give victory to the enemy in a war are traitors.
10.13.2006 12:49pm
Jiffy:
Taking up arms against the United States is not (and should not) be a crime for a foreign national whose country is at war with us. Taking up arms against the United States is and should be a crime for a U.S. citizen. Call it "treason." The problem with treason seems to be that, if treason prosecutions can be based on speech, treason laws are suceptible to being used to supress criticism of the government. It seems to me that it is unnecessary to define treason in a manner that makes it subject to abuse. Contrary to Prof. Volokh's assertion in point 6, Axis Sally, Tokyo Rose and Lord Haw Haw could all have been prosecuted for treason under definitions that have nothing to do with speech--namely, accepting employment by an enemy during wartime.
10.13.2006 12:58pm
Mark Field (mail):

The point of making treason illegal is to punish betrayal, above and beyond whatever is an appropriate penalty for the act itself.


Aliens can be guilty of treason. 1 Op. AG 84 (1798). The reason given is the temporary allegiance they owe while they're here. That strikes me as carrying the "betrayal" point a little so far as to undercut it.

I'm not convinced that the "sense of betrayal" constitutes an actual harm which ought to be punished as criminal. I'd hate to see adultery make a comeback as a crime.


Taking up arms against the United States is and should be a crime for a U.S. citizen. Call it "treason."


I don't have a real problem with this, though the laws of war deal with the situation already. In fact, the AG Opinion I cited above notes that if the alien acts under the command of a foreign government, then the case is no longer treason but under the law of war. I see no reason why that shouldn't be true for citizens as well under the "levying war" clause, but it's not a big issue.

The real problem is with the "aid and comfort" clause.
10.13.2006 2:35pm
Josh Jasper:
None of this is really surprising to me. A large amount, possibly a majority, of conservative pundits (the paid talk-how wing of the republican party) have been slinging the word "Treason" around constantly, and know exactly what it means to prosecute someone for treason - it means executing them.

The term treason is applied to everyone who speaks out against the war, including many current US representatives, and even some self titled conservative pundits. All of them are guilty of treason, according to intellectual types like Ramesh Ponnru, middle-class types like Limbaugh, and lowbrow psychopaths like Savage.

The point is, these pundits are pushing slowly towards the execution of dissidents to supress political opponents of the Republican party. It's certain they will ramp up efforts based on this trial.
10.13.2006 2:46pm
KeithK (mail):

The real problem is with the "aid and comfort" clause.

Providing "aid and comfort" to an enemy is just as treasonous as levying war. It means you are an accomplice. Hypothetical: Britain attacks the US hoping to regain it's lost colony. Person A, a US citizen, takes up arms and fights on behalf of the British against US troops. Clearly a traitor. Person B, also a citizen, doesn't carry a weapon but he willingly provides intelligence, supplies and communciations for the invaders. He hasn't necessarily "levied war" but his actions are (in my mind) clearly just as treasonous as Person A.

The question, of course, is what constitutes "aid and comfort". I'd say working with the enemy to achieve his goals satisfies this. I would clearly include producing propaganda videos, though of course you might disagree.
10.13.2006 3:48pm
KeithK (mail):

The point is, these pundits are pushing slowly towards the execution of dissidents to supress political opponents of the Republican party. It's certain they will ramp up efforts based on this trial.

Do you really believe this? Do you really think the evil right wing conspiracy is coming to get you? Must be a scary Halloween season for you.

Yes, I'm sure Rush and the others mostly know the legal definition of treason. But when they toss around the word "traitor" and "treasonous" they are using it in the legal sense that is punishable by death. It's meant in a more colloquial sense that just means "against what I believe America stands for". Is it responsible to throw this word around? No. But it's no more or less reprehensible than those on the left who toss the word "facist" around.
10.13.2006 3:54pm
Joshua:
Taking up arms against the United States is and should be a crime for a U.S. citizen. Call it "treason."

Shouldn't that be amended to "Taking up arms against the United States on behalf of a foreign enemy..."? Unless I'm mistaken, going to war against the United States on your own behalf is a different animal - sedition or rebellion, perhaps, but not treason.
10.13.2006 5:37pm
Jiffy:

Shouldn't that be amended to "Taking up arms against the United States on behalf of a foreign enemy..."?


Probably.

To Mark Field and Keith K:

I'm not saying that taking up arms is the only activity that should be considered treason--on the contrary, I suggested that "accepting employment by an enemy during wartime" could be treason (as "aid and comfort" or "adhering"). I am saying that given the potential for abuse, definitions of treason should not include references to speech and that they really don't need to.
10.13.2006 5:50pm
Mark Field (mail):

Providing "aid and comfort" to an enemy is just as treasonous as levying war.


I agree that it certainly can be.


The question, of course, is what constitutes "aid and comfort". I'd say working with the enemy to achieve his goals satisfies this. I would clearly include producing propaganda videos, though of course you might disagree.


My concern is that "aid and comfort" be construed narrowly, so that we don't end up with treason prosecutions for the exercise of political speech. But if we adopt an appropriately narrow definition, then what we're doing is punishing conduct which is most likely already prohibited (or could be) under other laws.
10.13.2006 5:51pm
Mark Field (mail):

I am saying that given the potential for abuse, definitions of treason should not include references to speech and that they really don't need to.


I think we agree here -- see my post above at 4:51.
10.13.2006 5:53pm
Jiffy:

I think we agree here -- see my post above at 4:51.


Not exactly. While I agree that treason should be defined by conduct only, I think treason can still have an element distinct from other crimes—the notion of disloyalty to one's country (especially in time of war or other conflict)—that makes it a unique offense applicable only to US citizens (or residents, if you like). This allows criminization of conduct by US citizens (like accepting employment with the German government during WWII) that would not in and of itself be criminal for a non-American (e.g., a German citizen). In short, limiting treason to conduct doesn't necessarily make it redundant.
10.13.2006 9:22pm
Josh_Jasper (mail):


Do you really believe this?


I can document it. Use of language suggestive of the need ofr violence or executiona gainst liberal dissidents is on the rise.



Yes, I'm sure Rush and the others mostly know the legal definition of treason. But when they toss around the word "traitor" and "treasonous" they are using it in the legal sense that is punishable by death. It's meant in a more colloquial sense that just means "against what I believe America stands for". Is it responsible to throw this word around? No. But it's no more or less reprehensible than those on the left who toss the word "facist" around.


Fascism is not a crime punishable by death. The intent is clear. As susual, the conservative response is something along the lines of "ha ha, when we said "attack liberals with baseball bats" we were just kidding".

Bullshit.
10.14.2006 11:31am
Rich Rostrom (mail):
Let's try a hypothetical, based on a true incident. During the Civil War, gold speculators got a New York paper to publish a faked Presidential statement calling for 400,000 more Union troops.

So, today:
Iranian agents dressed as Americans murder some Iraqi Shi'a elders that Iran doesn't like anyway. They videotape the crime, and deliver the tape to ABCNNBCBSCorp, whose owner has agreed to broadcast it.

The report triggers attacks on U.S. troops and a spike in oil prices. ABCNNBCBSCorp's owner makes a wad on oil futures.

Now, has he committed treason? Or is his action covered by the First Amendment?
10.15.2006 12:55am
Jim Carlile (mail):
The fact that there is such a difference of opinion on this issue shows that we're dealing with some really untrammeled ground when it comes to the levying of treason charges. It's so rarely done, and that's what troubles me about this administration, the whole enterprise seems suspect.

I am also troubled by Blackstone's broad definition of treason. By that test, wouldn't assisting, say, Mexican national drug dealers in a large scale criminal operation within our borders be considered treasonous?

Of course we're talking about our own Constitution, but I see little precedent for such charges based solely upon speech issues that involve an individual who has already both renounced his native country and lived abroad for a number of years.

Add to that the clear fact that the allegations involve giving aid and comfort to an amorphous enemy without clear borders or organizational structure, I'm not convinced that an adequate defense is impossible, at least with a reasonable, thoughtful jury.
10.16.2006 7:13am