Sunday, December 20, 2020

Treason and War

I very rarely (only a couple of times ever, out of over 5,000 posts) reprint something I have written, but I am going to make an exception here.  This is something I wrote concerning the claim that the definition of treason in the Constitution requires a declaration of war before treason can be charged.  This assertion is made over and over again by Republicans, in a typical effort to make people believe what they are saying, even though it is not true.  We see the same tactic of repetitive lying in various Republican arguments, most notably regarding the second amendment.  Anyway, I checked out this claim some time ago, and I believe it is groundless.  I remind you that the Constitution elsewhere refers to "enemies foreign and domestic," so adhering to the enemy, giving them aid and comfort, need not be only applicable to a foreign state at war with us.  


We see the current President openly considering actions to destroy the legally elected government of the United States.  As far as I can see, both in the beliefs of the writers of the Constitution and the jurisprudence that followed, this should clearly fall within the Constitutional definition of treason.  Anyway, here is what I found out:
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As some sort of reckoning for the abominable abuses of the Trump administration seems to be taking form, I believe it is vitally important to consider whether Trump's criminality could be considered to rise to the level of treason.

Of course, Republicans already have their propagandists out in force, angrily denying that such a thing could even be considered.  This denial is based almost entirely on the assertion that treason can only be committed if there is a declared state of war between the United States and the country on behalf of which the accused has acted.  I would like to consider this claim, which I believe to be a self-serving lie like everything Republicans have to say.  I must state that I am not an attorney, but I believe the evidence is clear enough to be understood by ordinary people.

First, let us look at what the Constitution actually says:

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

Please note the use of "or" in that sentence.  This makes it clear that one could adhere to our enemies without "levying war."  Thus, the plain words of the Constitution do not support the Republican claim.

Republicans argue, however, that Federal court decisions have established that a state of war is required for an act of treason to take place.  I have undertaken what I believe to be a fairly thorough search for these alleged court decisions, and have found only two that are cited or that seem to apply to this question; that in the case of the treason trial of Aaron Burr in 1807, and the previous case of Ex Parte Bollman and Ex Parte Swartwout, 8 U.S. 4,which was cited by Justice John Marshall in his decision on the Burr case.  Neither of these, I believe, supports the Republican claim.

Trial of Aaron Burr


Bollman and Swartwout were two men who attempted, but failed, to assemble a militia to attack the Federal government.  Here is the pertinent part of the decision in that case:

"To constitute a levying of war, there must be an assemblage of persons for the purpose of effecting by force a treasonable purpose. Enlistments of men to serve against government is not sufficient. “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. 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 object, 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.” 

As you can see, the case was not about whether treason could be committed absent a declaration of war, but totally regarding what constituted treason in a case where war was actually levied.  So this case really has nothing to say about the Republican claim.  However, let me note that it does say that those "who perform any part, however minute, or however remote from the scene of action" in an act of war can be considered traitors.  It says nothing about whether some sort of declaration of war is required.

Now let us move on to Marshall's decision in the Burr trial.  I excerpt the pertinent part of what Marshall had to say:

"Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors.  To complete the definition both circumstances must concur. They must “perform a part,” which will furnish the overt act; and they must be “leagued in conspiracy.” The person who comes within this description in the opinion of the court levies war."

No formal declaration of war required.

Chief Justice John Marshall

And that is the substance of the argument made by Republicans to absolve their President of treason; i.e. no substance at all.  Nowhere in the Constitution or in the supposedly pertinent criminal cases is this issue addressed.
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Let me just give one example here, to illustrate how absurd the claim is that a declared state of war is required for treason to be committed against the United States.  Suppose that it was discovered that an American had assisted the Japanese in their targeting of Pearl Harbor on December 7th, 1941.  As you undoubtedly know (knowledge which puts you one up on President Trump, you can be sure) the United States did not declare war on Japan until December 8th.  Could anyone possibly be so stupid as to suggest that the treacherous American had not committed treason, because he carried out his crime the day before war was declared?  This alone should be enough to convince any sane person that the Republican interpretation of the Constitutional definition of treason is utter rubbish, without any examination of the legal history of this claim.

1 comment:

ming said...

Worth re-posting. The thing that makes me uneasy is the question of who gets to pick the enemy,us or them?