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."
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.
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 13th 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.
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,
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
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 18th 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
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.
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.
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.
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
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."
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
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
20th 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:
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.
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."
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?
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.
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.)
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.
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.
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."
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.
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.