(no subject)

[rivka]

Someone at the New York Sun has an astoundingly poor grasp of the Constitution (link via Tapped.) In regard to the anti-war protests scheduled for February 15th, the Sun recommends that

So the New York City police could do worse, in the end, than to allow the protest and send two witnesses along for each participant, with an eye toward preserving at least the possibility of an eventual treason prosecution. Thus fully respecting not just some, but all of the constitutional principles at stake.

The word "treason" sure gets bandied about an awful lot in modern American discourse. (Take a look - or rather, don't - at Ann Coulter's new book.) The trouble with most of these arguments is that the Constitution is extremely specific about what constitutes treason: only levying war against the United States, or giving aid and comfort to its enemies. The Sun's claim is that Saddam Hussein is "comforted" by the existence of the American anti-war movement. Isn't that neat? I bet that Kim Jong Il is "comforted" by Bush's lack of inclination to invade North Korea - shouldn't the Sun be calling for a treason prosecution there? Once you start down that road, there won't ever be any need to stop... after all, the United States has a lot of "enemies," if you define that term nebulously enough, and almost any action that isn't overtly hostile could be said to produce some sort of emotion of "comfort."

Fortunately, the law sees the matter differently. Two centuries of Supreme Court decisions make it clear that "treason requires proof of an overt act, in order to forestall using the treason charge against unpopular speech or publication in the course of domestic political controversy." All this talk of treason truly amounts to is the further poisoning and uglification of public discourse.

Edited to add: Another, less technical, discussion of treason law can be found here.

Comments

[papersky.livejournal.com]

They're probably trying to scare people away from going. Which in itself is bad enough. Would you go on a march if marching might be considered treason later? Maybe, but maybe some people would reconsider. Did McCarthyism use the actual term "treason" or was it all "unAmerican activities"?

[rivka.livejournal.com]

Which in itself is bad enough. Would you go on a march if marching might be considered treason later?

I would, because if peaceful protest were successfully re-defined by the government as treasonous it would be time for that government to be overthrown. As Patrick Henry said, "if this be treason, make the most of it."

However, I don't think we're likely to reach that point. We've been at dreadfully low points in the history of American civil liberties before, and each time the vigorous efforts of patriots have ultimately protected our essential rights.

Did McCarthyism use the actual term "treason" or was it all "unAmerican activities"?

"Treason" got used rhetorically a lot in the McCarthy era, but was rarely charged and even more rarely led to convictions. The Rosenbergs, for example, were convicted of conspiracy to commit espionage, not treason.

[wcg.livejournal.com]

You're absolutely right, and I too get annoyed by people throwing the word treason around so carelessly.

[redbird]

If I were so inclined, I'd suggest a prosecution of the editorial board of the Sun for its attempt to subvert the US Constitution. That's a hell of a lot closer to treason than peacefully disagreeing with proposed government policy.

Oh, and how about an aid-and-comfort prosecution of Fox News, CNN, and everyone else who is paying the Iraqi government cold, hard cash for the right to keep reporters in Baghdad? If giving money to someone isn't aid, I don't know what is.

Besides, they aren't our enemies. Not legally and formally. Neither side has declared war.

[patgreene.livejournal.com]

There's a reason the administration did not go for specific treaons charges against John Walker Lindh. The standard is properly a high one; the Foundng Fathers were all too aware of what use had been made of the treason charge in British history.

I agree with you about the uglification of public discourse.

[supergee.livejournal.com]

Two witnesses for each participant? This guy understands logistics like he understands constitutional law.

Re:

[rivka.livejournal.com]

It would be a great setup for a story problem in a middle school math textbook, wouldn't it?

"If each police observer can observe ten protesters per hour, and the marchers intend to proceed along a two-mile course at the rate of 1.5 miles per hour, how many observers will be required to lay treason charges against a crowd of 100,000 protesters?"

[kiya]

It probably says something significant about me that my immediate response was "depends on the length of the column." (In math problem terms, it'd probably give the width of the parade in people. . . .)

Now I want to do the maths to see how close to right I am about that.

[lerryn.livejournal.com]

OK, add to the problem, ... assuming the protesters are marching down a 2 lane street, each lane being 10 feet wide, and an average protester being 5'8" and 180 lbs ... Guessing on average height/weight btw, but it would be significant as far as how much space each protester takes up ;) Oh dear gods, I can write story problems.

[johnpalmer.livejournal.com]

It really bothers me how the government is playing with these terms. People who attended ObL's training camp are being said to have provided material support. Somewho, "receiving something of value" has become "providing material support". (Later, I believe someone was embarrassed at how strained the logic was, because defendents were asked if they, e.g., performed guard duty. Performing guard duty at a training camp is now "providing material support".)

Re:

[rivka.livejournal.com]

People who attended ObL's training camp are being said to have provided material support. Somewho, "receiving something of value" has become "providing material support". (Later, I believe someone was embarrassed at how strained the logic was, because defendents were asked if they, e.g., performed guard duty. Performing guard duty at a training camp is now "providing material support".)

John, I don't know what you're talking about. No Americans have been charged with treason. The prisoners at Guantanamo Bay, of course, are none of them Americans and therefore can't commit treason against the United States.

And even if an American had been charged with treason for attending ObL's training camp - why does that strike you as a stretch? Receiving military training from an enemy who has taken up arms against the United States sure sounds like materially joining with an enemy cause to me. Would you feel the same way about, say, someone who went to Germany during WWII, completed military training with the German army, and performed guard duty at German military installations?

[johnpalmer.livejournal.com]

One of the more recent sweeps of "terrorist cells" yielded some folks for whom the best charges the government could come up with is "providing material support to a terrorist organization".

This "providing of material support" was "attending a training camp", which strikes me as an odd form of 'material support'. Lending your car to a terrorist to go grocery shopping, that I could see. Receiving training from one, well, that I *can't* see.

I assume the government realized that was pretty weak too, so they bolstered the case by pointing out that, while at the training camp, they did the same things anyone will do at a training camp... stood watches, etc.. *THIS* is the material support, they (seem to) claim. Similarly, if you hitched a ride with a terrorist, and threw in a few bucks for gas, they could get you using the same logic.

To use your example of a person in WWII, it'd be like arresting someone for having signed up with the German military prior to the US entry into WWII, having gone through basic training, but not (as far as anyone's willing to reveal) having done anything past that; for all we know, they were discharged after basic. Now, during WWII, they're told that having signed up for the German military at another time constitutes "providing material support to an enemy of the US"... after all, during basic training, they performed tasks that other recruits did, like KP, guard duty, etc..

If this is the best they can get, I'd rather they do the same thing they did with Padilla, and declare them material witnesses, and then enemy combatants. If they can reliably place them at the training camp, it sounds like they have a better case to hold them as material witnesses than they had against Padilla.

(As a side note: I just realized that I don't know *when* they're said to have attended the training camp. I believed - and I'm not sure why, if I read it, or just assumed it - that it occurred prior to 9/11/2001. If they attended it afterwards, the case for holding them for providing support is much stronger.)

[cattitude.livejournal.com]

It's unlikely that a treason charge per se would go anywhere. That's just the newspaper trying to drum up a little business.

If you want to be appalled, look up the alien and sedition acts. IIRC, they've been upheld by the supreme court. Here's a taste of the 1798 sedition act; remember that the dollars are 1798 dollars:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction, before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court may be holden to find sureties for his good behaviour in such sum, and for such time, as the said court may direct.

Civil disobedience, anyone?

BTW, more detail can be found at http://www.yale.edu/lawweb/avalon/alsedact.htm.

[dafna]

The important thing to remember about the Sun is that it's preaching to a very very small choir of like-minded folks. My first reaction to your post, actually, was, "Wow, someone is reading 'The Sun'"? I actually know some of the people behind it (the perils of college) and am constantly amused at how predictable their editorial policy is. But seriously, more people read Jae's stories than read The Sun's editorial page.