"Treason against the United States …" (Feinstein, Cheney ... Snowden" [3 July 2013]

             The Honorable Diane Feinstein (to say nothing of the dishonorable Richard Cheney) has called Edward Snowden's leaks about US National Security Agency programs "an act of treason." Ms. Feinstein is one of my two US senators, and I voted for her in 2012 and probably threw in a few bucks toward one of her campaigns or another (although not enough that I kept track or remember). I respect her and certainly have to take seriously her opinions as Chair of the Senate Select Committee on Intelligence. Still, I want to return to an issue I've touch on in earlier essays, and I want to argue with Feinstein and other Americans who speak a bit too casually of "treason."

            As Feinstein and other serious Americans well know, "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." So saith the Constitution of the United States, and not as an amendment, either: it's there in the original document, the first of two sentences in the third and final section of Article III. 

            The Founders defined "treason" in the Constitution — it's the only crime defined there — because, over the centuries, our British forebears had now and then gotten a little loose in defining the word, with bad consequences. At various times, "treason" might include not just "compassing" but "imagining the death of the king, his wife or his eldest son and heir," counterfeiting not just the royal seals but even "the king's coinage," or knowingly importing counterfeit money. Or being caught in Protestant England as a Roman Catholic priest. The imagining and priest bits aside, these were serious matters, as was waging war against the king. Still, the punishment for men (a guy fourteen or over) was hanging, drawing, and quartering — women were burned at the stake — and from the 13^th century on the treason statutes were often abused for what the Elizabethan play Gorboduc chillingly called "a wholesome terror to posterity," and for more immediately political ends.

            So the Founders stuck with the central and sensible part of the treason definition in English law and made sure Congress didn't start getting ingenious in its legislating loyalty.

            Edward Snowden, and Private First Class Bradley Manning and that corporate person WikiLeaks, are guilty of violating the United States Official Secrets Act which — fortunately for free speech and unfortunately for honest speech — the United States does not have one of. Not officially. What Snowden and Manning have done is interfered with foreign and other policies of the government of the United States, and probably should be punished for that. But espionage? I'm not so sure. And treason? Mildly stated, that's problematic.

            None of these folk levied war against the United States, and as we are reminded by the sesquicentennial commemorations of the US Civil War, the government of the United States has occasionally been quite forgiving of people who levied literal and massively deadly war against us. If Jefferson Davis wasn't tried for treason in, say, 1867, and hanged "from a sour apple tree," then it's clear that the US government can, on occasion, forgive with Christ-like charity. As a US Senator and Representative, as the US Secretary of War, Davis had sworn to "support and defend the Constitution of the United States against all enemies, foreign and domestic" and "bear true faith and allegiance to the same" — with "the same," I take it, including both the Constitution and the United States. I am not now nor have I ever been a lawyer, and I didn't even do well on the Law School Aptitude Test. I am, though, a native speaker of Midwestern American English and someone who speaks of "the Civil War" or "War of the Rebellion" and not "the War of Northern Aggression," so I think commanding military forces waging war against the American Union is definitely an act more clearly treasonous than interfering with various Great Games in which our government is engaged, or even giving indirect aid to people who want to murder large numbers of Americans.

            Snowden, Manning, and the WikiLeaks people weren't levying war against us; the question is whether their acts qualify as "adhering to" the enemies of the United States, "giving them aid and comfort."

            According to the on-line, but restricted-use, Oxford English Dictionary, "adhere" in the late 18^th century (and long before) meant what most of us would think it meant and means, "To support a person (party, cause) steadfastly; to be an adherent or supporter of." So we have the accusation made in the English Parliament in 1461-62, that "Certeyn persones ... adheryng to [King] Henry the fourth ...tirannyously murdred ... the right noble and worthy lords," I assume referring to the murder of some of Henry's enemies during his "Troublesome Reign" after he deposed his cousin, Richard II, a king by birth, but not very good at his job.

            It is unlikely that Snowden or Manning adhere to, say, the precepts of the Wahhabi movement in the extremist portions of Islam or support the Salafist cause and want to destroy the American Republic and turn it into a Caliphate. The question is whether by their actions Snowden or Manning (et al.) have in some significant, treasonous, way aided the enemies of the United States.

            If you know who "Henry the fourth" was, and King Richard II, if you know the dogged seriousness with which Shakespeare investigated the meaning of "treason" in his plays on the English civil wars — and the usefulness of the accusation to a "vile politician"or two — then you know that this is a complicated question.

            Otherwise, follow the debates in the news media or take my word for it: the last time it was perfectly clear who the enemies of the United States might be was during World War II, our last declared war.

            If the word "treason" gets thrown around too casually, the word "war" has had even worse treatment. Just because there's a figurative war on crime or war on drugs doesn't make it treason to adhere to the Mafia code of Omertà or give support, aid, and comfort to your local drug lord. You're going to be involved with crime and crimes, undoubtedly, but treason it is not.

            The United States has not been Constitutionally at war with anyone since the Japanese surrendered at the end of World War II. We have, however, had troops fighting in large numbers in Korea and then the former French colonies — this gets really complicated — in Indochina, in what we call "The Vietnam War." If, in early 1951, you gave the North Koreans or Chinese authorities information that led to the massacre of US troops, that would qualify as treason for most Americans. In the 1950s into the 1970s, protesting against US military involvement in Vietnam probably gave some aid and comfort to the Viet Minh, Vietnamese National Liberation Front, Ho Chi Minh, et al. as at least a side effect, "collateral damage," if you will; still I didn't think that treason ca. 1968, and I now am convinced it was a damn good thing to do. As that notable patriot Carl Schurz corrected the jingoist cliché, "Our country—when right to be kept right; when wrong to be put right."

            Arrogance on the part of us protestors? Hell, yes! But the people who talk of America as "a Christian nation" should add that much of our tradition was Protestant Christian, and whacko-radical, uppity Protestants on top of it. A big part of the American political tradition has descended from Dissenters: people who thought it not just their right but their duty to follow their arrogant, individual consciences against not just the State but the capital "E" Established Church as well.

            To return to the present, however — what about recent and current trade "wars" and international competition and US jockeying for power against, and influence on, even our allies? Is it treason or damnable arrogance to interfere with US spying on allies and trade partners? They're spying on us, and our close cousins the British during the first half of the 20^th century energetically and effectively spied on us and tried to manipulate us into two World Wars.

            Giving aid and comfort to US allies, sometimes allies intimately bonded to us by solemn treaties — that ain't treason either.

            "The War on Terror," though, gets us into real dilemmas.

            In The Battle of Algiers (1965) — quite possibly the most popular film by a Communist among US military thinkers — in an important scene in The Battle of  Algiers, French paratrooper Lt. Colonel Philippe Mathieu explains to an aide and reporters the usual form of what we now call asymmetric warfare: Insurrection "is an inevitable stage in revolutionary war; from terrorism, one passes to insurrection ... as from open guerrilla warfare one passes to real war, the latter being the determining factor ..."<>. And to this a reporter responds "Dien Bien Phu?" to which the Colonel responds, "Exactly," adding, as the reporter knows, that "In Indochina, they won," with Dien Bien Phu the climactic battle. On cue, in the world of the film as well as literally, the reporter asks, "And here?", in Algeria. And the Colonel responds, "That depends on you" — with "you" referring first off to the press, and beyond them the politicians and people of France who must carry on to the end to keep Algeria French, which means allowing the Colonel to do what he must do to accomplishing his mission, including torture.

            SPOILER: The French put down the insurrection in Algiers, but a couple years later there was a revolution, led by the Algerian Leftist National Liberation Front (FLN), a popular real revolution that threw the French out of an important piece of Africa. Since I write on the eve of 4 July 2013, let's say Yay!: a colonized people gained independence. But note that "in 1991, the FLN government of Algeria cancelled the results of a free election in which the decidedly un-communist FSI (Islamic Salvation Front) was poised to win a majority and banned the party. In response, a splinter group of the FSI, the Armed Islamic Group (GIA), set out to purify Algeria of all apostate and infidel elements. It is estimated that 100,000 Algerians have lost their lives as a result of the GIA’s zeal." 

            Al-Qaeda and its imitators and successors obviously see themselves in a global insurrection against "Zionists and Crusaders": the Crusaders are us, as a modern version of the invaders who seized and intermittently kept control of important parts of the House of Islam. Currently, in this view, there's the existence of Israel in the heart of the Dar al-Islam, plus US troops in Iraq and Afghanistan, plus insufficiently orthodox, Yankee-symp collaborative regimes in Saudi Arabia, Qatar, and so forth. Somewhat similar views are held by some US extremist groups, who see themselves living in a land ruled by the ZOG (Zionist Occupied Government) and see terrorists acts laying the groundwork for the insurrection that will purify America of the US version (in this extremist view) of "apostate and infidel elements."

            The question is whether we should see the issue this way. Is the War on Terror, more like The "War" on Crime — part of the "war" on crime — or is it more like the "Police Action"of Korea?

            Dealing with home-grown terrorists, there's general agreement that we're dealing with criminals; Timothy McVeigh, the 1995 Oklahoma City bomber, was charged with and convicted of murder and other, let's say, secular offenses, not treason. And I'm pretty sure we would have continued to see terrorists as particular vicious criminals, but just criminals if it were not for the attacks of 11 September 2001, where the death-toll reached battle-field proportions. It wasn't up there with the Battle of Antietam (17 September 1862), with its combined loss of 22,717 Americans dead, wounded, maimed, or missing, but the number of dead from "9/11" was comparable to Union or Confederate losses at Antietam, the worst single day for casualties in US history. The tolls of the attacks on New York and Washington were horrific, and the trauma was increased by the attacks' occurring in symbol-laden cities with extensive media, plus our unfortunate tendency to take the deaths of civilians much harder the death of young men in armies.

            (My apologies to the soft-hearted, but I'm "Vietnam Generation," and I have never totally forgiven my fellow Americans who were upset over the relatively accidental deaths of old people, women, and children in Vietnam while all for sending more young American grunts to kill and risk being killed intentionally.)

            All together, though, it's probably best to look at "9/11" as — probably — a one-off very lucky shot for al-Qaeda and very unlucky for New York and Washington. While taking great care to prevent game-changers like loose nukes and plague pathogens, it's best to refuse to buy the terrorists' inflated views of themselves as holy warriors of one brand or another.

            Criminals, then, not warriors, nor irregular combatants; we should see terrorists as part of a dangerous crime threat, not enemies of the sort with whom one can commit treason. Or, none of these groups qualify yet, and foreign competitors don't count as such enemies ever.

            Until terrorists move into the big-time real weapons of mass destruction or mass lethality, until they move from "open guerrilla warfare" on "to real war," people like Snowden and Manning can at worst aid and abet some dangerous criminals. And they have or will have certainly violated what we use in America instead of an official Official Secrets Act.

            And that damage may be balanced and more than balanced by the patriotic service of helping the American Republic. America "—when right to be kept right; when wrong to be put right."

            If Snowden and Manning et al. have helped with that project, the government of the United States should go easy on them for any embarrassment or undermining of security.


            For sure, I request Senator Feinstein to stop talking of treason — and Mr. Cheney, who has not been good for the American Republic, might consider, for public consumption, just not talking.