Tuesday, June 27, 2006


The T-word has been enjoying an unwelcome resurgence among the online right ever since last week's disclosure of a "limited" clandestine government program to sift through terabytes of international finance records in search of terrorism leads. Its more charitable denizens have restrained themselves from levying the charge outright, instead preferring to convict the press of such blunted charges as "reckless disregard of our safety" and "sheer prurience." But the right's never been known for its rhetorical punctiliousness, and plenty of commentators have been happy to accuse journalists of treason using the word itself. Now all this may just be standard hypertext hyperbole, but to the extent that these people are even halfway serious, the allegations merits some investigation.

A cursory glance at US history reveals that the government has been exceedingly circumspect in bringing charges of treason and that such cases are extremely unlikely to result in conviction. An AP article from late 2001 on John Walker Lindh notes that our nation has seen "barely 30" cases in 225 years, suggesting that it's a crime not alleged lightly. Wikipedia maintains an international list of people convicted of treason, the American subsection of which contains just seven names. Victoria Toensing, commenting on the Lindh case for the National Review, contends that "[treason cases] are rare because they can only be brought when we are in a military conflict," and 20th-century American jurisprudence seems to bear this out. Dr. Theodore Bolema of the libertarian Mackinac Center for Public Policy buttresses this analysis with a sharp historical observation buried deep within a rebuke of Michigan governor Jennifer Granholm's misuse of the charge:

Treason is the only crime defined in the U.S. Constitution, and for good reason. The English Statute of Treasons, which was in effect in the 13 colonies prior to the Declaration of Independence, had evolved into an instrument for suppressing dissent against government policy and for punishing criticism of the king or queen. The U.S. Supreme Court discussed this history in Cramer v. United States (1945). In that decision, the Supreme Court found that historical materials from the time the Constitution was written "show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence." Indeed, English courts later interpreted the Statute of Treasons as requiring not just words of opposition, but an act of rebellion.

Perhaps it is not too seditious to suggest that this modern understanding of treason is the right one, and that we can take comfort in knowing that the pre-Revolutionary War Statute of Treasons no longer applies in America.

Cramer, a business associate of two German saboteurs during WWII, was acquitted of treason by the SCOTUS. In a 5-4 decision, the majority found that Cramer's association with the Nazis did not rise to the high Constitutional bar set by Article III, Section 3 which defines treason as ". . . levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." Justice Robert H. Jackson offered a more detailed illumination (emphasis mine):
Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.
This overly narrow definition was erected by the Founders, Jackson argued, as a bulwark against the arbitrary and sweeping nature of traditional Anglo-Saxon notions of treason, which "might be predicated on intellectual or emotional sympathy with the for[eign nation?], or merely lack of zeal in the cause of one's own country." We were already past this point in 1787; the casual bandying-about of treason accusations today evinces a poor understanding of US history at best, and a cynical smearing of political enemies by means of a convenient legalish insult at worst. In fact, the rarity of such charges throughout US case history has shifted the word's general connotation from the criminal to the crassly pejorative—indicating that it should seldom be taken seriously, especially by those clearly using it as a weapon.

Note: William O. Douglas dissented from this opinion, claiming that "acts, though innocent by nature, may serve a treasonous plan" [quoted from Wikipedia]. A much more balanced and informed discussion of the controversy over treason's finer points can be found at Vlex. If nothing else, all this examination should impress upon us that the crime in question is far from a simple one, contrary to what many on the right would have us believe.