No, not “traitors”

Tom Cotton and his friends acted foolishly and even illegally.
But what they did wasn’t “treason.”

Having despaired for years about the unwillingness of the mass media to call out the Banana Republicans for their extremism and disregard of Constitutional norms, I’m happy to see the New York Daily News reacting strongly against the Logan Act violation by Tom Cotton and 46 other Republican senators.

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But the word “traitors” is simply wrong. A “traitor” is someone who commits “treason.” Treason is the one crime defined in the Constitution, precisely to avoid what had been the English habit of stretching the meaning of the word to encompass all sorts of political dissent:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Note that the often-misquoted “aid and comfort” clause doesn’t constitute an independent definition of “treason.” The crime is “making war on the United States” or “adhering to their enemies.” “Aid and comfort” clarifies the meaning of “adhering”: merely sympathizing with an enemy doesn’t constitute “treason” unless there is what current law calls “material assistance.” That’s clarified further by the next sentence, requiring eyewitness proof of an “overt act.”

You can think, as I do, that the Senators’ letter was wrong, foolish, and even unpatriotic in its effects; you can think that it helped foreign powers hostile to the United States by weakening American diplomacy and making our government look frivolous to the rest of the world. But even if you think – contrary to any evidence I’m aware of – that Cotton & Co. were trying to damage the United States as well as actually damaging the United States – that still wouldn’t amount to “treason” in the Constitutional sense of that term. An “enemy” is the other party to a war (as the Declaration of Independence says, we hold all of mankind “enemies in war, in peace friends”). Arguably we are currently at war with al-Qaeda and with ISIS, and perhaps with the Transnational Criminal Organizations on the Treasury’s asset-control list; with the rest of the world (and yes, that includes Russian and China and Cuba and North Korea and Iran) we are currently at peace.

There’s a good case that the Cliven Bundy crowd was committing “treason” when it pointed loaded weapons at U.S. government employees to prevent them from carrying out their lawful duties. But other than that sort of civil-war activity, or helping the designated transnational criminal and terrorist groups, it’s not actually possible today for an American citizen to commit the crime of treason, for lack of “enemies” to adhere to. Edward Snowden, for example, whatever you think of his actions, did not commit the crime of treason. (Espionage is a different matter.)

So go ahead and abuse those Republican senators – including the three currently seeking to occupy the Presidency whose lawful powers they have done their best to weaken – as much as you like. Point out that their actions actually weakened U.S. bargaining power vis-a-vis Iran. Agree with Les Gelb’s conclusion that “Congressional Republicans hate President Obama more than they love America” and with Fred Kaplan that the GOP has “revealed itself as utterly unsuited for national leadership.” Demand, if you please, that the Twoscore and Seven Clowns be prosecuted under the Logan Act, whose (probably unconstitutional) terms their letter clearly violated:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

But please don’t call what they did “treason.” For that crime, they lacked the opportunity,  the intention, and the guts.

 

 

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

14 thoughts on “No, not “traitors””

  1. Ah but you are wrong. Ever heard of The Logan Act? Neither have Senate Republicans – the traitors!

    1. Heard of it? The post quotes it.
      But a Logan Act violation – even if that law is constitutional – doesn't amount to "treason."

      1. It's not even a Logan Act violation, for a number of reasons. For one, it's a stretch to say that issuing a press release, which is really what happened here, constitutes "correspondence or intercourse" in any meaningful way. I suppose one could imagine indirect correspondence that relies upon sequential press releases but that's not really what we have here. This is just a bunch of senators making a public statement as to what their intentions are. It's not really any different than if they'd written a op-ed column saying the same thing.

        Second, as you say, the Logan Act is probably unconstitutional anyway, which probably helps explain why no one has been indicted under it since 1803. Think through all of the things that have been done since then, including Nancy Pelosi's trip to Syria in opposition to President Bush's foreign policy. It's hard to see how this constitutes any sort of difference of kind, although it's scope is larger.

        Lastly, the State Department decided in 1975 that the Logan Act does not cover congresspersons acting pursuant to their legislative duties. That these senators, stupid as they may be, are acting in their capacities as legislators is pretty clear.

        Really, we'd be better off if no one ever mentioned the Logan Act ever again.

    2. I think that the Republicans, at least those who play to the right wing are enemies of the State. They have, like antisocial types, decided to shred the social compact by doing whatever they please to undermine the government. They seem to think that by causing chaos and discord they can make us vote for them. They are out to overthrow the government by ignoring Constitutional law and indeed packing the Supreme Court so that that body is no longer representative of the law.

  2. the terms "treason" and "traitor" have been tossed around with such abandon over the last few years that most people seem to have forgotten that these words have precise, legal meanings. In any case, when describing Senate Republicans, there is no need to look for fancier words when the time honored expression "assholes" is almost always appropriate

  3. Well, you cannot deny that this is all Obama’s fault for having gone to Israel at the invitation of the Labor Party and getting up in front of the Knesset and attacking Netanyahu’s policies and calling him a warmonger. Also, we all remember the time that 47 Democratic senators sent that letter to North Korea back when Bush was pressuring them on their nuclear program and told them that if they just waited for a new president, they would get a much better deal. No one made a fuss about that, did they? So what is their problem now?

  4. " .. the English habit of stretching the meaning of the word to encompass all sorts of political dissent …" Wikipedia does list a variety of offences which have from time to time been added to the 1351 list of high treasons, including counterfeiting the Great Seal of Scotland. Committing adultery with the sovereign's eldest unmarried daughter was already there. But political dissent? Does Mark have examples?

    "The Treason Act 1351 specified that the listing of offences was meant to be exhaustive. Only Parliament, not the courts, could add to the list." So creative prosecution was difficult. Counterfeiting, and screwing the Queen, aren't dissent. There were really two classes of political extensions: the first under the Tudors, to enforce loyalty to the Henrician church: and after 1688, against Jacobites. It was high treason to correspond with the Pretenders, which Harley notoriously did without sanction, and to support their claim in print.

    The Wikipedia claim about "the abuses of the English law (including executions by Henry VIII of those who criticized his repeated marriages)" looks like a canard. Henry made it treason "to refer to the Sovereign offensively in public writing", but was anybody executed for drunken jests? Denying that his marriages were legitimate was far more serious: it meant that his hoped-for son would not be a legitimate heir. The Tudors were paranoid, but enemies were out to get them. Pope Pius V declared Elizabeth I a pretender in 1570 on the grounds of illegitimacy, making Catholics duty-bound to commit treason: a ghastly error which poisoned relations between English Catholics and the Protestant majority for centuries.

    Quite a few Catholics were executed in the 16th century under the former wave. I don't think anybody was under the second. All the executions I could find in the 18th century were for actual rebellion, plotting to kill the King, or for spying for the French. So it looks as the authors of the US Constitution were reacting against British legislative excess à la Patriot Act rather than British practice.

    1. Yes, it's true that the Pope ordered English Catholics to commit treason. It's not true that all of the Catholics executed for treason under Elizabeth were actually plotting for the overthrow of the government.

      Strafford was attainted of treason.
      Both Charles I and some of the surviving regicides were tried for treason.

      So I think it's fair to say that the English law of treason reached further than the Framers wanted to permit for America, and I think the Framers were right.

      1. No disagreement there. BTW, a good and fair-minded post.

        The Founders were traitors under English law, so had reason to think on the matter.

  5. Mark,

    I think your frame of reference is too parochial. Before treason was a crime defined in the Constitution, it was a word. If you look up "treason" in the dictionary, I think you'll see that there’s a good argument to be made that deliberately undermining a critical security initiative of one’s country (and particularly if done for political gain) is a sufficient betrayal to constitute treason.

    The complexity, of course, is that the neocons to remove every possible obstacle to Iran’s building of a bomb because of their rather paradoxical belief that if they can leave the rest of the world with a binary choice between an Iranian bomb and all out war, the world (and particularly the United States) will choose war, exactly as the neocon’s want. Similarly, they believe that if there is no alternative except war, then they will be returned to power because, by provoking yet another disastrous war in the Middle East they will have demonstrated themselves to be the party of strength.

    Frankly, I think if one's regular complaint during all these years of GOP intriguing and usurpation of power has been that “none dare call it treason,” I personally wouldn’t feel the need to be so hypercritical in demanding conformity with the unique American technical definition rather than accepting the dictionary meaning. Derailing a president’s most important security initiative and exposing the country to harm from a foreign enemy, albeit in the expectation that the hoped for war will solve everything, probably qualifies as treason in the common usage of the word in the English-speaking world.

  6. Filed under "Domestic Politics" ! Excellent; the US does not have and cannot have a "foreign" policy, as there is [?almost] no one in Washington who could find any given country on a globe. Every mention of an overseas entity is merely an allegory for some domestic faction.

    "Iran", for example, is not about a threat posed today (to Israel or whomever); it is about revenge for 1979 — *not* against Iran, but against the domestic faction(s) that supported Jimmy Carter.

  7. Ok then. “common law” traitors and possibly felons , unconvicted of course, under the Logan Act.

  8. I liked the discussion of treason. Being a lawyer, I found myself noticing and being annoyed by the gratuitous use of “clearly” when in passing you characterized the applicability of the unconstitutional Logan Act to the letter.

    No. It isn’t clear. It is clearly arguable. It is arguable. But you have multiple parts including the Authorized by the United States part, the question whether an open letter in the Times counts as correspondence…since nothing was sent, nothing private, is it even squarely captured? Arguably. And arguably not. It is only clear if you ignore the details.

    (This part is an open letter to all advocates) Stop saying clearly when you mean clearly to you. It never convinces, always rings a bell that you’re lacking an argument or support for why you’re right.

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