SETH LIPSKY:REVEALING SECRETS AND RISKING TREASON ****
America sets the bar high in defining traitorous acts. But ‘adhering’ to the enemy in times of war? Watch out.
http://online.wsj.com/article/SB10001424127887324688404578543410828226862.html?mod=opinion_newsreel
The case of the runaway spy Edward Snowden is igniting talk of treason. No less a figure than the speaker of the House, John Boehner, has gone on ABC’s “Good Morning America” and called Mr. Snowden a “traitor,” while the chairman of the Senate Intelligence Committee, Dianne Feinstein, deemed his revelation of U.S. surveillance methods an “act of treason.”
This is a teachable moment in respect of a heinous crime. It reminds us of why the Founders made it so difficult to bring charges of treason. But it’s also a moment to reflect on a warning sounded by an early chief justice. The constitutional protections against abuses of treason charges remain strong, but once war is levied—that is, waged—citizens will want to take care about how they behave.
For treason turns out to be unique in American law. It is the only crime that the Constitution forbids Congress from defining. It is the only crime to which a court may never accept a confession given to the police. It is the only crime for which restrictions are laid down on how much evidence juries must hear. The Constitution itself underscores that the Founders feared treason law.
This Sunday, June 9, 2013 photo provided by The Guardian newspaper in London shows Edward Snowden, who worked as a contract employee at the U.S. National Security Agency, in Hong Kong.
This is not only because a number of them, to put it mildly, could have been put on the gallows for treason against England. It’s also because treason has often been abused. There were periods in merry England when it was considered treason even to imagine the death of the king. So the Founders made sure treason would not be abused here.
“Treason against the United States,” the Constitution says, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It adds: “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.”
What this adds up to is that a person has to do one of two things to be a traitor: either levy war or adhere to (form an attachment to, the Supreme Court once said) our enemies, giving them not only aid but also comfort. The two-witness rule has also made treason cases rare in American history.
The liberalism inherent in the Founders’ formulation is one of America’s glories. It means that we Americans can criticize our government during war and even praise an enemy government without being a traitor. Talk doesn’t rise to the level of treason unless one also adheres to the enemy. But if one does adhere, even in passing, watch out.
One American traitor, Tomoya Kawakita, was visiting Japan from his home in California when World War II broke out. At one point, he abused American prisoners while working in a Japanese company. When, after the war, he registered as an American citizen and came home, he was charged with treason. Justice William O. Douglas of the Supreme Court concluded that he “showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance with the United States.”
It is often written, including in a number of papers during the past week, that Julius and Ethel Rosenberg were executed in 1953 for treason. In fact they were doomed for a different crime: conspiracy to commit espionage. One reason they weren’t tried for treason is that the U.S. wasn’t in a state of war with Soviet Russia.
War has actually to be levied before there can be treason. This was laid down in a Supreme Court ruling in 1807, in a case involving two confederates of Aaron Burr, Erick Bollman and Samuel Swartwout. They’d been put in the dock for treason, accused of having plotted with the former vice president to break off part of America as a separate country.
Chief Justice John Marshall let them go. “To conspire to levy war, and actually to levy war, are distinct offenses,” he wrote in a famous opinion known as Ex Parte Bollman. “The first must be brought into operation by the assemblage of men for a purpose treasonable in itself or the fact of levying war cannot have been committed.” He marked that the “actual enlistment of men to serve against the government does not amount to levying war.”
Then, however, he issued a famous warning.
“It is not,” Marshall wrote, “the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied—that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose—all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
It is not my purpose here to suggest that anyone involved in the current controversy is guilty of treason. It is my purpose to remark that because America is at war with al Qaeda—that is, a body of men has been levying war against us—we are in a season when treason is possible. And those who flirt with it are likely to be judged against the standard that was set by John Marshall and has endured for two centuries.
Mr. Lipsky, editor of www.nysun.com, is the author of “The Citizen’s Constitution, An Annotated Guide” (Basic Books, 2009).
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