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.
Though not on a firsthand basis, Framers of the Constitution were painfully aware of this tradition. And they believed that it was a means of quashing legitimate dissent, dissent that they deemed vital to a well run democratic system. They understood that treason could threaten the well-being of a state. But they wished to create a tradition that prevented treason from being used for political purposes, for the preservation of power of people and parties in government.
The language defining treason comes in two clauses. In the first clause it is "levying war against them." War, here, being an act of one state against another. The language anticipates that from time to time one country will be engaged in an acute military struggle with another. It anticipates that such a struggle is officially declared war by Congress. We imagine that the framers expected such a conflict would be resolved quickly as were most declared wars in English history. And that they expected that when each war was concluded, strife would cease, and agreements would be signed. And nations that once were enemies would no longer be so.
The conditions that might make the act of treason possible under the Constitution would be temporary, fleeting. They would not tempt leaders to use a perpetual war or the fact of perpetual, if imagined, enemies as an excuse to create treason in political opponents where none could otherwise be found. In fact, they established "well governed militias" because they feared the results of having a standing army.
Because of treason's clouded background, the framers wanted to limit it to the cases that presented clear and imminent dangers to the the existence of the state; not hypothetical, distant ones. The terms "war" and "enemy" were special terms of art in the Constituton. They had special meanings, not normal conversational ones. War was declared. Enemy was the object of the declaration. It was a nation, not any other entity. With this in mind, we get to the second clause "or in adhering to their enemies, giving them aid or comfort."
The definition of enemy is again a term of art. Again, it is a nation upon which the Congress of the United States of America has officially declared war. The real issue is the relationship between phrases "aid and comfort" and "adhere to enemies." There are lots of ways to parse the relationship between the two phrases. But it seems reasonable to depend upon the occurrance of the term "only" as a hint. If one does this, then "giving them aid or comfort" is a kind of explanation or a kind of condition that must be met in order for one to be considered "adhering to their enemies." In this interpretation, the two phrases must go together as in "adhering to the enemy and giving them aid and comfort."
There is an instance of popular current usage that suggests a group of people find it convenient to their purposes to imagine that the two phrases were connected by the word "OR" suggesting that either adhering to the enemy or giving aid or comfort were treasonable offenses. Actually, everyone in this case appears to simply dismiss the first phrase as inscruitable or irrellevant.
As a practical matter, it is difficult to know what is meant by "adhering to their enemies." Simple consortation is never sufficient. It would not be treason for the American Ambassador to eat at the Royal Table during the Revolution. Or a citizen. No. It would only be treason if he did so and he revealed vital secrets of state that would materially compromise America's prosecution of the Revolutionary war. And that he did so with prejudice meaning to aid the position of a declared enemy and knowing of its detriment to the US. Actions that would reveal such secrets incidentally or without understanding their harm really do not satisfy the clause of "adhering to their enemies."
That is the stuff of "aid and comfort" in the context of "adhere to the enemy." Separating these two phrases would be wrong under any circumstances, but the matter is made worse by the fact that the modern day usage of "comfort" is materially different from that of the writers of the Constitution. This heaps insult upon injury. For an already misconstrued phrase takes on a meaning that is very far afield from the original intent. And this fact deserves some discussion. The first definition to be found in the OED for comfort is "Strengthening, encouraging, inciting, aiding... " It suggests that comfort in this context refers specifically to "strengthening." Interestingly, the OED quotes Blackstone in 1769 "if a man be adherent to the king's enemies giving them aid and compfort... "
4. "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. ...
Blackstone, whom the framers of the Constitution are quoting, demostrates that what the framers meant by aid and comfort was aid that would strengthen and enemy in the prosecution of a declared war against the United States. Aid and comfort refer to material aid.
Physical goods that would clearly help and enemy prosecute a war. Or intelligence of the same sort. Or material physical efforts in the prosecution of such a war. Making pleasant talk about the enemy is not treasonous. Nor is critiquing any aspect of a government's prosecution of war on an enemy.
By contrast, American Heritage Dictionary, 3rd edition gives "to soothe in a time of distress" as a definition of comfort. Usually, one does not soothe in a time of distress by giving material things, except perhaps, a warm beverage or a stiff drink.
What civilized person would characterize a nice cup of tea or two fingers of good single malt Scotch or sour mash Bourbon treasonous? Comfort, as we use the term is different from the sense used in the Constitution.
Contemporary meaning carries a sense of addressing psychological needs, whereas the framers of the Constitution were primarily concerned with material needs. Contemporary sense carries a private connotation. The connotation of the term in the Constitition is exclusively public.
These two meanings have almost no connection with each other. And it is the wrong meaning that the people in the current event in question have attached to the term. The severely restrictive language of the treason definition in the Constitution suggests also that "aid and comfort" can only be meaningful if one "adheres" to the enemy. That means joining and supporting their cause. "Aid and comfort" is a term of art as well. And it does not mean "consolation" or "sympathy." It means providing arms or the the means to get arms; and it means providing specific actionalble, classified information about ongoing military operations in the prosecution of a declared war against an enemy. It means joining with the enemy nation in prosecuting their own military action against the United States in a declared war. This, of course, is my opinion. But once one starts expanding the scope, it is really not a great conceptual distance one must travel before one makes nonsense of the Constitutional language and its intent.
We have argued for an extremely narrow sense of the term treason. We understand that it is more narrow than law or courtroom precedent would likely support. There have been successful prosecutions of people for treason when certain kinds of intelligence were leaked to nations with which the US was not at war. Perhaps the most notorious case involved providing information about nuclear weapon design to the Soviets.
More recently, the Valerie Plame incident reminds us that under US law disclosing the name of a CIA operative is an act of treason. There are compelling reasons to make these acts unlawful. But, it seems to me, that construing them as treasonous is a monumental mistake; for doing so sets the precedent for construing as enemies entities that are not at war with the US. Once one starts down this path who is to define an enemy? Under the Patriot Act, if I understand it correctly, the President has the power to name people as enemies. And the notion of treason being propagated about Washington these days would make it a crime to aid such people. One such act might include representing them in court of law.
In fact, law firms are being pressured by the administration not to take certain kinds of cases at the risk of losing valuable corporate clients. Another potential notion of treason might include media criticism of certain arrests. This is all nightmarish stuff. It is stuff that cannot happen in America. And it is happening.
And that brings us full circle. By interpreting the language of the Constitution in a way that is clearly anathema to the intentions of its framers, the Bush administration and its advocates succeed in creating the very conditions that motivated the founding fathers to fight the Revolutionary war and to write the Constitution.
By saying "aid and comfort" as a threat to people who would sanction or criticize presidential action or policy, we return to precisely the way of retaining governmental power and control that the framers of the Constitution were trying to overthow. In fact, if we take Blackstone seriously, there has been no time in Anglophone history when we have veered so closely to using "treason" as a standard charge for "dissent."
By this measure, England under Mad King George lived much closer to the sense of treason held in mind by the framers of the Constitution than we might expect America to do under the tuteledge of his contemporary namesake. This would be nothing but an esoteric argument were it not true that ranking government officials are actively trying to undermine the restrictive language the Constitution imposes on the idea of treason. For example there is this recent interchange between Senator Lieberman and General Petraeus:
Sen. Joseph I. Lieberman (I-Conn.) asked Army Lt. Gen. David H . Petraeus during his confirmation hearing yesterday if Senate resolutions condemning White House Iraq policy "would give the enemy some comfort." Petraeus agreed they would, saying, "That's correct, sir."
Lieberman and Petraeus are agreeing on record that an act condemning policy amounts to "aid and comfrort of an enemy." This is wrong. First, there is no enemy. Congress has not declared war on anyone. Nor has anyone declared war on the US. The factions in Iraq may be shooting at Americans or setting off bombs, but they are not "the enemy."
We are, presumably, in Iraq on their behalf. That would make them technically our allies. Or our clients. That they shoot us suggests our own bad taste in allies or clients. Or it suggests we have overstayed our welcome. If the Iraqis who are upset at American occupation were the enemy, then virtually all Iraqis are the enemy. And who is it that is giving aid and comfort to the enemy? Who is it that it has committed two trillion dollars to bring democracy to Iraq? And why are American weapons so easy to buy in shops around Baghdad?
The term enemy might refer to an assumed organization whose members presumably plan and carry out violent acts. But this is the definition of crime and of a criminal organization. We have spent two trillion dollars, presumably to pursue and destroy this organization. And to date, it is hard to identify one bona-fide member of the organization has been tried in a court of law in the US.
So either there is no person who satisfies the informal definition, or the group is so sophisticated and difficult to catch that there is simply no hope of catching up with them without driving the nation to financial ruin. Really, for two trillion dollars one expects some positive results. Either this class of enemy does not exist. Or there exists no hope of catching them.In the first case they cannot be aided and comforted. In the second case, they require none of our help and are unlikely to benefit from any offered.
Second, there exists no declared war. Nor has any government official proven any connection between action in Iraq and and violent acts in queston. There is one press feeding at which President Bush himself says something like "Look, no-one ever claimed that the war in Iraq had anything to do with 9/11." Iraq is not an enemy. Nor by any normal definition - even Dubya's - is al-Qaeda. In the absence of an enemy, the "aid and comfort" provision is moot. How does one aid and comfort a non-existent entity?
Third, "aid and comfort" are defined only in the context of "adhering to" an enemy. If Iraq is the enemy, who is giving aid and support to Iraq? Who is adhering to Iraq? If drug lords are the enemy in Afghanistan, who gave them aid and comfort to overthow the Taliban? If Bin Laden was the enemy in Afghanistan, who telephoned ahead and warned him to quit Bora-Bora in advance of the attack? Who gave him aid and comfort in the form of intelligence?
If we are going to wield this unwieldly sword, we must soon realize that it is sharpened more keenly on the edge that is not now being used. And that forces in Washinton who are using it now are using it as a bludgeon.
Finally, are Lieberman and Petraeus arguing that anyone in Iraq that is shooting at Americans will behave any differently if the president's policies are criticized by Congress? Are they asserting that if the president is not criticized the violence will stop? This is not believable. And if it were so, it cannot be deemed relevant.
Americans need to be able to discuss public policy in public. Congress has a constitutional obligation to check the powers of the executive. Criticizing executive policy within Congress, checking executive power, these are not vaguely suggestive of treason; they are the purpose of Congress. They are among its sworn duties.. Blackstone insisted on it. The framers of the Constitution insisted.
Except for the likes of Rush Limbaugh, people do not criticize the government for sport or for profit. They normally do it because they sense a shared interest in good public policy. It is for this reason that criticizing the government can never be treasonous. No matter what. American Revolutionaries fought for this principle.
If the people who are undermining the Constitution believe that the Revolutionaries were wrong, let them say so. Let them say that democracy is a bad idea; that America should be ruled by a dictator who cannot be criticized. Let us see if America really does want to travel the path they are leading us along one step at a time, once Americans have end in full sight.
What we are witnessing is a systematic undermining of the sense of the Constitution (see article on Gonzales below). Such a thing is unthinkable. Because it is unthinkable, we imagine that cannot be happening. And so long as we insist on not seeing it, it goes along smoothly. I agree that it is unthinkable. Yet I cannot imagine that it is not happening. It is a steady drum-beat that comes from a rather sizeable group of Washington power brokers and politicians.
And if we stuff our ears with cotton because the noise of it bothers us, we heighten the risk that we will wake up one day after their counter-revolution is over, only to discover that criticizing the government will cost us our jobs or our freedom.
If we are to talk about enemies using definitions that are not terms of art, then the enemy I fear most is the politician who holds no respect for the personal freedoms granted by the Constitution. The politician who undermines the spirit and sense of the Constitution by eroding support for the restrictions it places on governmental powers to act against individuals.
If we are to define enemies in terms of what they criticize, then the enemies of America - as a sort of shining ideal - must be the governmental officials who use the word "treason" or who use the false definition of that word to limit legitimate discussion of policy. That behavior betrays all that Americans hold dear, all that once distinguished America's system of government from alternative types of governments. If we fail to see this fact; if we fail to stop the enemies of the Constitution from rendering it meaningless, our grandchildren will visit our graves only to spit on them. And we will have earned the full measure of their contempt.
Copyright: Stephen R. Brubaker, 2007. All Rights Reserved