The crime of “treason” is one of the gravest an American citizen can commit, if not the gravest. It is one of the few crimes other than murder for which execution is still a permissible punishment under both U.S. federal law and the laws of several states. The framers of the U.S. Constitution were so concerned about the temptation to abuse this term — by depicting political dissent as a criminalized betrayal of one’s country — that they chose to define and limit how this crime could be applied by inserting this limiting paragraph into the Constitution itself; reflecting the gravity and temptation to abuse accusations of “treason,” it is the only crime they chose to define in the U.S. Constitution. Article III, Section 3 of the Constitution states:
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.
Treason was the only crime to be explicitly defined and limited by the Founders because they sought “to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition.” In other words, the grave danger anticipated by the Founders was that “treason” would radically expand to include any criticisms of or opposition to official U.S. Government policy, activities they sought in the Bill of Rights to enshrine as an inviolable right of U.S. citizenship, not turn it into a capital crime.
In a 2017 op-ed in The Washington Post, law professor Carlton Larson reviewed the increasing tendency to call other Americans “traitors” and explained: “Speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution. Regarding the promiscuous use of the word by liberals against Trump, Professor Larson wrote: “An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies.” For that reason, even Americans actively helping the Soviet Union during the Cold War could not be accused of “treason” given that there was no declaration of war against the USSR. Using the most extreme hypothetical he could think of to illustrate the point, he explained: “Indeed, Trump could give the U.S. nuclear codes to Vladimir Putin or bug the Oval Office with a direct line to the Kremlin and it would not be treason, as a legal matter.”
For that reason, treason has rarely been prosecuted in the U.S.: “according to the FBI, the U.S. government has successfully convicted fewer than 12 Americans for treason in the nation’s history.” While Americans who rebelled against the British crown were technically traitors, as were those who waged war against the union during the Civil War, prosecutions have been exceedingly rare. That means that through all the various wars the U.S. has fought from the 18th Century until now — the War of 1812, the Spanish-American War, the Mexican-American War, the two World Wars of the 20th Century, the Cold War, the wars in Korea and Vietnam, the dirty wars in Central America, the wars of Afghanistan and Iraq, the War on Terror — the number of total treason prosecutions is less than a dozen. That is because Americans understood, based on constitutional constraints and Supreme Court law restricting its scope, that this crime is very difficult to charge and applies only in the narrowest of circumstances.
That understanding is now gone. During the War on Terror and the invasion of Iraq, neocons routinely accused war opponents and skeptics of their “anti-terrorism” civil liberties assaults of being traitors. David Frum’s stint as Bush White House speechwriter enshrined this “patriotism” attack as his and their speciality. Bush and Cheney’s speeches, especially leading up to the invasion of Iraq, the 2002 midterms, and then the 2004 re-election campaign, inevitably featured innuendo if not explicit claims that Americans opposed to their war policies were against America and on the side of the terrorists: i.e., traitors. The Lincoln Project’s Rick Wilson produced a campaign ad for the 2002 Georgia Senate race morphing the face of the Democratic incumbent Max Cleland, who lost three limbs in Vietnam, into Osama bin Laden’s. Upon leaving the White House, Frum continued to build his career on impugning the patriotism and loyalty of anyone — right, left, or in between — who opposed all the various wars he wanted to send other people’s children to go fight and die in.
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