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Wednesday, June 12, 2013

Setting The Bar Low For Treason

Ugh:

“I don’t look at this as being a whistle-blower,” Sen. Dianne Feinstein (D-Calf.) said. “I think it’s an act of treason.”

I expect such glib references to treason from people on the Internet who file petitions against DiFi for her gun regulation fervor, but not from a Senator.  It dilutes the meaning of a crime so serious it was codified in the Constitution.

While I'm not sure this Wikipedia list of people convicted of treason in the US is exhaustive, it is at least illustrative:

Note that this also makes the mistake of conflating treason with other things, but at least indicates which people actually were found guilty of the crime as opposed to espionage or what have you.  You also might notice that the treasonous activities were very clearly examples of levying war (mostly waging outright rebellion) or adhering to enemies (engaging in propaganda or otherwise giving aid and comfort), while even the egregious spying did not rise to the level of Article III, Section 3.

One of those in particular caught my eye.  William Bruce Mumford was the first person to be executed for treason against the United States (John Brown was guilty of treason against Virginia):

On April 26, 1862, the Union warship Pensacola dropped anchor in New Orleans Harbor. Though the Crescent City was yet technically held by the Confederates, the last of its defenders in gray had already abandoned the port. As the day wore on, a small boat bearing a lieutenant and a contingent of marines was launched from the Pensacola. It came ashore at the foot of Esplanade Avenue in the French Quarter.

Acting without orders from Admiral David G. Farragut, the Union landing party quickly proceeded to the old United States Mint, a massive Greek Revival structure in the 400 block of Esplanade. There, they ascended to the roof, removed the Confederate flag, and replaced it with the colors of the United States of America.

An angry crowd gathered in the streets of the French Quarter and watched in disbelief. Among the mob were William Mumford and three of his friends. Unwilling to abide by the change of colors, the four men stormed to the roof and brought the Stars and Stripes down by breaking the mast that held it. When Farragut’s fleet observed this, it opened fire on the men, but they made a safe exit from the building with their prize. Throngs of citizens cheered as Mumford dragged the flag through the muddy streets of the city. When the grand parade was over, there was but a scrap of banner left.
Three days later, on April 29, New Orleans oflicials surrendered to Farragut, and General Benjamin Butler assumed military control of the city. He wasted no time in antagonizing the local citizenry. His demands were onerous: All citizens were to swear allegiance to the government of the United States or depart Federal-held territory with no more than their clothes and fifiy dollars.

There would be no such escape for William Mumford, however. On his first day in New Orleans, Butler issued another edict: “I find the city tmder the dominion of a mob. They have insulted our flag—torn it down with indignity. This outrage will be punished in such manner as in my judgment will caution both the perpetrators and abettors of the act, so that they will fear the stripes, if they do not reverence the stars of our banner.”
The four friends were hunted, but only Mumford was captured and brought to “justice” before Butler’s hand-picked military commission. On June 5, 1862, Special Order No. 70 was issued, thereby directing that William B. Mumford be executed on Saturday, June 7.

Beast Butler's order: 

Wm. B. Munford, a citizen of New Orleans, having been convicted before the Military Commission of treason, and an overt act thereof in tearing clown the United States Flag from a public building of the United States, for the purpose of inciting other evil-minded persons to further resistance to the laws and arms of the United States, after said Flag was placed there by Commodore Farragut of the United States Navy.
It is ordered that he be executed according to sentence of said Military Commission ... under the direction of the Provost Marshal of the district of New Orleans, and for so doing this shall be his sufficient Warrant.

From my vantage, that's a travesty of justice, but in the middle of a massive rebellion it's probably not the best idea to do anything that might be inciteful in a war zone.  Anyway, important parts of the form were observed: Mumford's act was clearly overt, with at least 2 witnessess.  

Beyond that, Butler refers to resistance to laws and arms of the Republic, echoing some of what Justice Joseph Story said in 1842 after Dorr's Rebellion.  But Story also wrote in his Commentaries a decade earlier:

Treason is generally deemed the highest crime, which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance by force of its powers. Its tendency is to create universal danger and alarm; and on this account it is peculiarly odious, and often visited with the deepest public resentment. Even a charge of this nature, made against an individual, is deemed so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in times of high political excitement, acts of a very subordinate nature are often, by popular prejudices, as well as by royal resentment, magnified into this ruinous importance.

We must tread lightly when making this charge--it's all too easy to take less-extraordinary offenses and turn them into supreme crimes.  Just because something might arguably help an enemy, an act isn't necessarily giving aid and comfort, per Cramer v United States.  And we do have other legal tools that address the seriousness of offenses without tring to contort them into treason, per United States v Drummond.  Thus, somebody like Adam Gadahn most likely is guilty of treason for his active, overt assistance to al Qaeda, but Snowden, whose single act does not appear to carry the necessary intent, isn't.

A violation of the Espionage Act or other statute?  Yeah, probably, and he should be prepared for the consequences, no matter how noble his act of conscience might be.  But Senator, you aren't a judge and jury, and you really should know the difference between treason and other crimes, so stop spouting off.

Again, the justice system will deal with what Snowden did.  It's up to Congress and the public to decide if the NSA is engaged in activity consistent with our ideals as a free and open society.

ntodd

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June 12, 2013 in Constitution, Schmonstitution | Permalink

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