It’s been a while since people have thrown the “T” word around with abandon. The last time I can remember hearing someone being called a traitor was back during George W. Bush’s administration when anyone who criticized the Iraq war was labeled a traitor. Regardless of one’s political philosophy, it wasn’t appropriate to label those who were critical of that administration’s policies as traitors, and it isn’t appropriate to label the 47 senators who signed on to an open letter to Iran earlier this week as traitors.
If you don’t know what I’m talking about, on March 9, 2015, 47 Republican senators signed a letter (PDF) addressed to the Leaders of the Islamic Republic of Iran. In it, the signatories wanted to inform the Leaders of the United States’ constitutional system, and to let the Leaders know that “while the president negotiates international agreements, Congress plays the significant role of ratifying them.” Furthermore, “[a]nything not approved by Congress is a mere executive agreement.” Going one step further, the signatories wanted to make it clear that the president gets to serve, at the most, eight years, but Senators get to serve for an unlimited number of 6-year terms. Therefore, for whatever reason, the signatories wanted to make clear that
we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.
A New York Daily News editorial, surprisingly enough, called the letter “a treacherous betrayal of the U.S. constitutional system.” The editorial has been seized upon by various opinion outlets as proof that the signatories are traitors and trying to undermine ‘Murica.
I don’t know about the latter, but the former is certainly not accurate, and it really grates on me when loaded terms like “traitor” are thrown around lightly. Like cheapening acts of terrorism by naming people who cut down trees out of protest as “eco-terrorists,” calling the signatories traitors for penning a misguided open letter cheapens what treason really is.
Treason Defined
Treason is the only crime clearly defined in the United States Constitution. (Counterfeiting garners a mention in the Constitution, as do piracy and crimes against the law of nations. U.S. Const. Art. I, sec. 8.) By being the only crime that is specifically incorporated into the controlling document of the United States, treason is clearly a crime to be treated seriously.
Article III, section 3 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.
It’s a pretty high standard: you need two witnesses to an overt act or a confession, and you need to either levy war or give the enemy aid and comfort with adherence. 18 U.S.C. § 2381, which codifies the crime of treason, is defined a little differently:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason….
The punishment for treason is death, or imprisonment for at least five years. And you can’t hold office in the United States after conviction.
Adherence, and Aid and Comfort, to the Enemy
The two definitional clauses that always trip people up are the adherence to the enemy and the aid and comfort clauses. It is important to note that
[o]ne may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Kawakita v. United States, 343 U.S. 717, 736 (1952).
In other words, both adherence and aid and comfort are required. In Kawakita, the defendant had dual citizenship with the United States and Japan. During World War II, he went to Japan to act as an interpreter, and the overt acts which led to the treason charges involved his kicking American prisoners and forcing them to continue working. In these respects, his acts “showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States”; instead, they “actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests.” Id. at 741. In other words, aid and comfort involves “giv[ing] the enemy the ‘heart and courage to go on with the war.'” Id. at 741-42, citing Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.
The defendant’s adherence to the enemy was shown by citing his comments to prisoners: “You Americans don’t have no chance. We will win the war.”; “I will be glad when all of the Americans is dead, and then I can go home and live happy.” There were many more such statements, and they established that he had “align[ed] himself with the Japanese cause.” Id. at 743-44.
Whatever one might think about the senators’ letter to Iran, whether it was good idea or a bad idea, it is clear that the senators are not traitors. While the letter may perhaps serve to undermine the president’s ability to negotiate with Iran, there’s no indication that the senators really want Iran to come out ahead in any negotiations. There’s also no real sense that there might be another “enemy” to whom they are supposedly adhering. Furthermore, it’s difficult to determine just how the letter would give any aid and comfort other than allowing Iranian negotiators to tell themselves “if we don’t agree to anything, we’re in the clear, and even if we do agree to something, Congress will just unravel it.” That’s pretty nebulous. No, in then end, it’s a simple political ploy, and the Daily News would have served itself well to reserve the term “traitor” for true instances of treason.
(Of course, the paper probably wouldn’t have gotten a traffic bump, and it wouldn’t be able to crow about #47Traitors trending on twitter, so…)
