Don’t Call Them Traitors

Having despaired for years about the unwillingness of the mass media to call out the Banana Republicans for their extremism and disregard of Constitutional norms, I’m happy to see the New York Daily News reacting strongly against the Logan Act violation by Tom Cotton and 46 other Republican senators.

 

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But the word “traitors” is simply wrong. A “traitor” is someone who commits “treason.” Treason is the one crime defined in the Constitution, precisely to avoid what had been the English habit of stretching the meaning of the word to encompass all sorts of political dissent:

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

Note that the often-misquoted “aid and comfort” clause doesn’t constitute an independent definition of “treason.” The crime is “making war on the United States” or “adhering to their enemies.” “Aid and comfort” clarifies the meaning of “adhering”: merely sympathizing with an enemy doesn’t constitute “treason” unless there is what current law calls “material assistance.” That’s clarified further by the next sentence, requiring eyewitness proof of an “overt act.”

You can think, as I do, that the Senators’ letter was wrong, foolish, and even unpatriotic in its effects; you can think that it helped foreign powers hostile to the United States by weakening American diplomacy and making our government look frivolous to the rest of the world. But even if you think – contrary to any evidence I’m aware of – that Cotton & Co. were trying to damage the United States as well as actually damaging the United States – that still wouldn’t amount to “treason” in the Constitutional sense of that term. An “enemy” is the other party to a war (as the Declaration of Independence says, we hold all of mankind “enemies in war, in peace friends”). Arguably we are currently at war with al-Qaeda and with ISIS, and perhaps with the Transnational Criminal Organizations on the Treasury’s asset-control list; with the rest of the world (and yes, that includes Russian and China and Cuba and North Korea and Iran) we are currently at peace.

There’s a good case that the Cliven Bundy crowd was committing “treason” when it pointed loaded weapons at U.S. government employees to prevent them from carrying out their lawful duties. But other than that sort of civil-war activity, or helping the designated transnational criminal and terrorist groups, it’s not actually possible today for an American citizen to commit the crime of treason, for lack of “enemies” to adhere to. Edward Snowden, for example, whatever you think of his actions, did not commit the crime of treason. (Espionage is a different matter.)

So go ahead and abuse those Republican senators – including the three currently seeking to occupy the Presidency whose lawful powers they have done their best to weaken – as much as you like. Point out that their actions actually weakened U.S. bargaining power vis-a-vis Iran. Agree with Les Gelb’s conclusion that “Congressional Republicans hate President Obama more than they love America.” Demand, if you please, that they be prosecuted under the Logan Act, whose (probably unconstitutional) terms their letter clearly violated:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

But please don’t call them “traitors.” For that crime, they lacked the opportunity,  the intention, and the guts.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.