None Dare Call it Treason
- From: "GWhyte" <gwhyte3003@xxxxxxxxxx>
- Date: Wed, 21 Sep 2005 06:56:15 -0400
None Dare Call it Treason
By Henry Mark Holzer
FrontPageMagazine.com | September 21, 2005
http://frontpagemagazine.com/Articles/ReadArticle.asp?ID=19550
"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."
(Constitution of the United States of America, Art. III, Sec. 3, Par. 1)
Not until 1945 did the Supreme Court of the United States review a treason
conviction. Cramer v. United States[i] was the first. Seven other cases
followed, two in the Supreme Court and five in United States Courts of
Appeal: Haupt v. United States,[ii] Chandler v. United States,[iii] Gillars
v. United States,[iv] Best v. United States,[v] Burgman v. United
States,[vi] D'Aquino v. United States,[vii] Kawakita v. United States.[viii]
Cumulatively, in these eight decisions arising from World War II, the
Supreme Court of the United States established that for a prosecutor to take
an "aid and comfort" treason indictment to a jury he must prove four
elements beyond a reasonable doubt: (1) an overt act, (2) testified to by
two witnesses, (3) manifesting an intent to betray the United States (which
can be inferred from the overt act itself), (4) the act providing aid and
comfort to the enemy.
The first three elements of the crime are not difficult because they are
objective. Hiding money belonging to a saboteur, surveilling a defense
plant, broadcasting enemy propaganda, and torturing American prisoners of
war are all manifestly overt acts. Two witness proof-for example, from
Tomoya Kawakita's victims in Japan and Jane Fonda's American POWs in North
Vietnam-is also objective. As is the intent to betray, in cases where rogue
CIA and FBI agents spied for the Soviet Union.
The final element of a treason case is that the defendant's conduct provided
"aid and comfort" to an enemy of the United States. In Cramer, the Supreme
Court observed that "[t]he very minimum function that an overt act must
perform in a treason prosecution is that it shows sufficient action by the
accused, in its setting, to sustain a finding that the accused actually gave
aid and comfort to the enemy."[ix] The same was true in Chandler where the
First Circuit Court of Appeals had to decide whether the prosecution adduced
enough evidence from which the jury could reasonably have concluded that
Chandler's overt act(s) had provided the constitutionally requisite "aid and
comfort" to the Nazi regime. Chandler claimed that not one of the alleged
overt acts-by themselves-provided aid and comfort to the Nazi's goals. The
Court of Appeals disagreed:
Possibly the overt acts, viewed in rigid isolation and apart from their
setting, would not indicate that they afforded aid and comfort to the enemy.
But viewed in their setting, which is set forth above . . . they certainly
take on incriminating significance. They then appear as typical routine
activities of Chandler in fulfillment of the purpose of his continuous
employment as radio commentator for the German Propaganda Ministry over a
period of three years. The enemy's mission which Chandler participated in
forwarding-the objective of the German Short Wave radio program beamed to
the United States-also appears as part of the setting. It was an obvious
advantage to the enemy in the execution of that program to have the open
assistance of a cultivated and widely traveled American citizen like
Chandler. That the enemy deemed Chandler's services to be of aid and comfort
is attested by the high salary which they paid him. These services consisted
not merely of the culminating act of making a recording, but also of the
necessary preliminary acts directed to that end. They were all part and
parcel of the totality of aid and comfort given by the course of conduct as
a whole. Attending a conference of commentators, at the summons of the Chief
of the U.S.A. Zone, in order that directives as to the current propaganda
line might be relayed and discussed and individual assignments made, could
reasonably be found to have been of aid and comfort to the enemy. The proof
under overt acts 4 and 5 established Chandler's participation in two such
conferences. And certainly the making of recordings by Chandler, on the
occasions proved under overt acts 17 and 18, warranted findings that
Chandler gave aid and comfort to the enemy. The evidence under overt act 17
showed two recordings by Chandler on the same occasion: one a recording for
his regular Paul Revere broadcasts, and another a recording of a special
mixed program of poetry and music. The evidence under overt act 18 showed
the making of a dialogue recording by Chandler and one Sittler, who was
employed as a translator in the U.S.A. Zone. [x]
At this point it's useful to repeat the constitutional definition of
treason: "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."[xi]
The "levying war" prong of the treason crime has been italicized for two
reasons. First, to emphasize that, until now, the discussion has been
limited to the "adhering" prong. Second, because the "levying war" prong is
just as much a part of the crime of treason as the "aid and comfort"
prong-and because it is much misunderstood.
It is popularly, and erroneously, believed that a "levying war" charge
requires that the United States actually be at war. For example, when
people considered Taliban John Walker-Lindh's activities with the Taliban
and al-Qaeda in Afghanistan- as a member of armed forces with which the
United States was not formally at war-the question was often asked as to
whether one can be convicted of treason absent a formal declaration of war.
The answer is yes.
Historically, neither the text of the A.D. 1350 English Statute of Edward
III-the genesis of our Constitutional law of treason-nor any of the
commentary interpreting that venerable law, nor for that matter the statute'
s historical application, suggest that a formally declared war is a
necessary element of the crime of treason. Indeed, the statute's historical
preoccupation was with protection of the monarch from domestic, as well as
foreign, enemies, and thus the history indicates that a declared state of
war (however that would have defined in the Fourteenth Century) was not a
necessary element.
Additionally, the text of Article III, Section 3, paragraph 1, of the
Constitution of the United States-in providing that "[T]reason against the
United States shall consist only in levying war against them, or in adhering
to their enemies, giving them aid and comfort"[xii]-clearly confines the
"war" element to the "levying" prong of the crime, and makes that element
inapplicable to the "or adhering" prong. This interpretation is borne out
by two early cases.
The first was the notorious episode involving Aaron Burr, one of the most
interesting characters of the post-colonial period. Thomas Jefferson and
Burr were tied for election to the presidency in December 1801. The House
of Representatives elected Jefferson, and Burr became Vice President. He
was not a happy Vice President. Though a Republican, Burr not only later
made common cause with his party's opponents, the Federalists, but he
conspired against the United States government itself. The "Burr
Conspiracy," born at the end of his vice presidency, consisted of a bold
plan to "'liberate' Mexico from Spain, and at the same time make Louisiana
an independent republic, which Mississippi Territory would surely decide to
join."[xiii]
During preparation of the conspiracy, a confederate betrayed Burr to
President Jefferson. Even though the United States was not at war with any
other nation at that time, Burr was charged with the "levying war" prong of
the treason crime.
Thus, if in time of non-war a person, like Burr, can be charged with the
"levying war" prong of the treason crime, one can be surely charged with the
"adhering" prong during cold war and hostilities. Indeed, no one can
reasonably doubt- as "Aid and Comfort": Jane Fonda in North Vietnam
proves-that Hanoi Jane could have been indicted for, and convicted of,
treason for her conduct in North Vietnam even though we were not formally at
war with the Asian Communists.
The second case, in the Supreme Court of the United States, occurred in
1863, and arose out of the Civil War:
On the fifteenth day of March, 1863, the schooner J. M. Chapman was seized
in the harbor of San Francisco, by the United States revenue officers, while
sailing, or about to sail, on a cruise in the service of the Confederate
States, against the United States; and the leaders . . . [including
Greathouse] were indicted . . . for engaging in, and giving aid and comfort,
to the then existing rebellion against the government of the United
States.[xiv]
Since Greathouse, like Burr, appeared to be a "levying war" case, the actual
legal question before the court was not whether in an "adhering" case a
declared war was a necessary prerequisite for indictment and conviction.
However, in language appearing in Justice Field's discussion of the concept
"enemies," the Greathouse Court did have something to say about the concept
of "war." According to Field, "The term 'enemies,' as used in the second
clause [of the Constitutional treason provision], according to its settled
meaning, at the time the constitution was adopted, applies only to the
subjects of a foreign power in a state of open hostility with us."[xv]
Justice Field's words were written only seventy-six years after adoption of
the Constitution. He knew his constitutional history, and he chose his
words carefully. If, in Justice Field's discussion of the status of a
"foreign power" in relation to the United States, he meant to refer to
"war," he certainly would have done so. Instead, the Supreme Court justice
chose the word "hostility," denoting a very different relationship: one not
of war. Accordingly, based on the background of English, colonial,
constitutional, and post-constitutional decisional history, the absence of a
formal declaration of war is no impediment to a charge of treason.
That being so, it is important to understand something else very important
about the crime of treason.
First, because treason is the only crime defined in the Constitution,
conduct constituting that crime should be taken seriously-and other than by
prosecuting, there is no other way to do that.
Second, it is very much the purpose and function of the law, in certain
circumstances, to make moral statements, as do many of our statutes and
common law doctrines. Criminal laws punishing everything from homicide to
shoplifting come to mind, as do civil laws providing recompense for
everything from breached contracts to intentional infliction of emotional
distress. Indeed, underlying the award of punitive damages is the
punishment of civil wrongdoers-certainly a moral statement.
Third, an important aspect of prosecuting (and, even better, convicting)
someone, say Jane Fonda, for treason, is to provide vindication for those
who have suffered from the treasonous acts. Although the purpose of the
criminal law is often thought to vindicate "society," that in reality is
nothing more than lots of individuals. "Society" did not have its morale
weakened by the broadcasts of Axis Sally and Tokyo Rose. "Society" did not
endure the torture of the North Vietnam Communists. Individuals did-and it
is they who must be vindicated. Indeed, even today countless veterans feel
that their government let them down by never prosecuting Fonda and her
cohorts who gave aid and comfort to the enemy during the Vietnam War. They
suffered, and she walked-and prospered! And that is not right.
It has been famously said that Treason doth never prosper: what's the
reason? For if it prosper, none dare call it treason."
America can no longer afford not to call it treason!
.
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