On Treason
July 12, 2009 by drkate4justice

©2009 drkate4justice/drkate

(Author’s Note: This is the first of a two-part article on treason. In this first part, I present context, some history, and a few questions for your consideration. The second article, coming up shortly, provides a brief presentation of case law on treason, some implications for today, and further questions.)
A nation can survive its fools and even the ambitious. But it cannot survive treason from within.~Cicero

O.K. I want to talk about this openly–without accusation, but with the intent of sharing information that we, as Americans are currently faced with. We now face ‘treason’ in two fundamental ways:

first, we are assessing Obama’s behavior, as well as Congress, and the concept of treason arises in our minds.
Second, already those of us who have been at the TEA parties, protested or spoken up about Congress’ or the executive’s power grab have been accused of being ‘treasonous’.

Those listeners of Constitutional Radio know that I am a fan of not being loose with language, especially the Constitution. In that regard I strongly believe in defining the terms as they are used in and applied by the Constitution. We must not let Obama define what the word ‘treason’ is, or what constitutes legitimate or ‘treasonous’ protest. He has already labeled a legitimate exercise of constitutional democracy a ‘coup‘.

I was taking my time writing this article when Paul Krugman wrote a piece on June 29 describing those who voted against the cap and trade bill as “committing treason against the planet.” In one fell swoop, Krugman cheapens the word and concept of ‘treason’, while demonizing anyone who dares to question the true intent of this bill.

In my opinion, Krugman’s piece was the trial balloon in using the word ‘treason’ to demonize different viewpoints and to attribute “treason” to actions on the environment.

To attribute a charge of treason to anyone in this country, it must be lodged within the historical context of and framework for its development, and the founders’ inclusion of ‘treason’ in the Constitution. We must know these terms and concepts in order to defend ourselves and to reclaim and restore our Constitutional Republic.

The Constitution

According to J.W. Hurst,

Article III, Section 3, bears the mark of a provision, the primary reference of which is to history:

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.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The framers did not choose to contrive their own definition of the crime of attempting the subversion of the government. “Treason” is itself a term which — to speak only of the Anglo-American background — was familiar to the common law before it was used in the Statute of 25 Edward III, from which the Constitution derives its language concerning the levying of war, and adhering to enemies, giving them aid and comfort.

The record makes it clear that terms thus weighted with historic significance were deliberately chosen, in order better to deal with a problem the practical dangers of which history was believed to teach.

There are thus two elements of treason against the united States according to the Constitution:

Actual waging of war against them
Adhering to their enemies; giving their enemies aid and comfort
Further the Constitution provides that no person can be convicted of treason unless accused by two people knowledgeable about and witnesses to the same act of treason, or by confession in Court.

Treason in U.S. History

Our Founding Fathers were treated as traitors, and as having committed treason against the King of England by declaring independence. And, yes this was necessary in order to create the United States.

The Declaration of Independence articulated the conditions–tyranny–under which the people had the right to reject one allegiance and transfer it to another. Though imperfect, the creation of the United States Constitution obligates America to justice.

Here is a brief summary of the applications of the Constitution’s treason provisions in American history, found at this interesting site:

1794 Whiskey Rebellion. Federal troops led by George Washington quashed this challenge to central authority, and a federal circuit court condemned to death two men—whom Washington later pardoned—for treason.
1807 trial of Aaron Burr, accused of attempting to establish an independent trans‐Appalachian empire. Although circumstantial evidence pointed toward the defendant’s guilt, the government’s inability to prove that an overt act of treason had occurred resulted in Burr’s acquittal. In a victory for a narrow interpretation of the law of treason, Chief Justice John Marshall ruled that “the difficulty of proving a fact will not justify conviction without proof.”
During the Mexican War (1846–48), religious allegiance took precedence over national loyalty for several hundred Irish immigrant U.S. troops who deserted to the Mexican Army when the Mexican government appealed to them to defend Catholicism and promised them land.
1859, John Brown and his followers, in the name of God and slave liberation, seized the Federal arsenal at Harper’s Ferry, Virginia, as part of a plan to establish a guerrilla force to free all slaves. Although considered treason, the raid was “a serious and important attempt to end slavery in North America.” Although Brown had attacked U.S. property, Governor Henry Wise had the conspirators tried for treason against Virginia. This assertion of state jurisdiction reflected the assumptions that soon produced the secession of the Southern states in 1861.
The secession of the states has been described as the ‘most significant act of treason in American history’, and “suppression of the rebellion was based on the assumption that the Union was permanent and that secession from it could never be justified. “ But as we know, there are many reasons behind the south’s secession, including the fact that in 1860, the southern states provided 87% of the tax revenue to the Northern states, who used it to protect their own manufacturing interests.

What assertion of state jurisdiction today would bring a charge of ‘treason’ and a federal assault on a state?

Returning to the brief review of treason in U.S. history:

Congress has expanded the definition of treasonous behavior by legislation such as the Alien and Sedition Acts of 1798 and and the Espionage and Sedition Acts of World War I (1917; 1918), which punished political expression deemed hazardous to the state. Both sets of legislation proved controversial. The acts of 1917–18 legitimated a government crackdown on dissent of all kinds and foreshadowed the crisis atmosphere of the Red Scare of the 1920s.
The Cold War saw the charge of treason used to build political careers and silence dissent. Congressman Richard M. Nixon, in 1948, initiated investigation of a State Department employee, Alger Hiss for his alleged activities as a Communist Party contact in the 1930s. In 1952, Senator Joseph McCarthy, alleging “twenty years of treason,” launched his campaign to eliminate alleged traitors in the federal government. McCarthyism made dissent tantamount to treason.
1985 Jonathan Pollard, a Defense Department analyst.
In recent years, treason has tended to be committed for monetary gain rather than ideological commitment. Typical of this trend are Central Intelligence Agency (CIA) officials Aldrich Ames and Harold James Nicholson. Ames passed extensive information on U.S. intelligence operatives abroad; Nicholson, confessed to passing secrets to the Russians, and is the highest ranking CIA employee to be caught spying.
Applications & Lingering Questions

We who opposed Obama have already been ’softened up’ to the charge of ‘treason’: for more than a year our concerns have been met with charges of racism and worse. The foul accusations are intended to ‘desensitize’ the population to a charge of being a ‘right wing radical’, a ‘domestic terrorist’, or ‘unpatriotic’, all of which can easily lead to use of the term ‘treason’.

In application so far, it looks like Krugman is using the word ‘treason’ as a tool to silence dissent, like Nixon, or at least laying the ground work for the TOTUS (teleprompter of the United States) to do so. When the link is made between ‘betrayal of the country’ (or Obama) and refusal to pass so-called environmental legislation, like cap and trade, then I believe this has crossed the line and becomes ‘an attack against the united States’ or ‘domestic violence’ perpetuated on the state under Article IV, Clause 4. In other words, treason–the very thing they are trying to accuse us of!

For further insight into how words are being appropriated and twisted by Obama, look at his reactions to the Iran and to Honduras. In Iran, the government attack on and murder of the people was called “unjust”; in Honduras, the lawful exercise of constitutional power to remove an executive who had violated the constitution, a Supreme Court order, various drug laws, and his own government was called a ‘coup’. In the first situation, Obama offers Iran hot dogs and negotiations; in the second, he rallies with dictators and attempts to involve the United Nations in forcing the restoration of “democratic processes” a dictator in Honduras.

In the language of the U.S. Constitution, and from America’s perspective, the actions of the Iranian government fall into the treasonous category of “making war against” the people and would not be tolerated here. In Honduras, the government properly exercised its constitutional authority to remove a man that was committing treason against his own country by “providing aid and comfort to and adhering to its enemies,” the enemies of democracy.

If such a treasonous action happened here, it would be up to the FBI to arrest the appropriate individuals, and if the FBI refuses a valid arrest warrant, the U.S. military. Not the local police. And if that happens we have procedures outlined in our constitution on how to replace the individuals who have been arrested.

Think about this. Obama had the exact opposite reaction to these two events that would be predicted from the President of the United States of America. Informed Americans would condemn Iran and support the call for Zeyala’s voluntary resignation–yes something short of the use of the military if possible.

Asserting states’ rights under the 10th Amendment will be an important test of the endurance of our Constitution. I also believe that 10th Amendment actions are important components of wresting control back from the federal government. But at what point, and in what form, will the federal government ” wage war on the states” for that assertion of state sovereignty, under the guise of “treason”? Would they conjure up the civil war just in case they need to use the race card again?

On Treason, continued
July 14, 2009 by drkate4justice

©2009 drkate4justice/drkate

The first part of this essay presented the Constitutional definition of treason against the united States:

Actual waging of war against them
Adhering to their enemies; giving their enemies aid and comfort
The Constitution also specified that no person could be convicted of treason unless there were two testifying witnesses or upon confession in open court.

I marvel at the ‘preciseness and flexibility’ of these words. The Founders expected that the practical lessons of history would inform the use of these words and concepts appropriately as our Republic evolved.

Building on the first part of this essay, this article first presents a brief review of how the Supreme Court has interpreted and applied ‘treason’ in various cases. The cases provide more ‘direction’ regarding the need for two witnesses and what may be considered as evidence for treason, and reveal an interesting tension between the Court and Congress regarding what ‘behaviors’ can be considered treasonous. Some implications and practical applications of this information follow.

I am thankful to jbjd for taking a critical look at the first essay and enabling the update of this article with a 2006 charge of treason against an American citizen, the first case on treason to be brought before SCOTUS in 50 years.

Legal Framework & Examples

The Supreme Court sustained a conviction of treason for the first time in its history in 1947 in Haupt v. United States:

Haupt, a naturalized United States citizen of German origin, was the father of one of the German saboteurs landed secretly by submarine in this country in June, 1942. When the son came to Chicago, defendant gave him shelter for several days in the building in which defendant lived, accompanied him on visits to foremen of a war-materials plant so that the son might seek employment there in furtherance of his mission, and accompanied and assisted him in buying an automobile which the son needed for the activities of his sabotage group; defendant’s admissions to federal agents after his arrest and his statements to fellow prisoners in jail, established that he knew of and sympathized with his son’s sabotage mission.

Here it was held that although the acts relied upon to support the charge of treason were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Continuing,

The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative.

This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:

”As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.

”The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.

‘In the 1945 case Cramer v. United States,the actual form of the restrictive interpretation of treason in the constitution was determined. The case opined that this historic policy should be viewed as taking two forms: it both bans the addition of new categories of subversive conduct to the two branches of “treason” stated in the Constitution, and limits the kinds of conduct which may be charged under either of those two branches.

The Haupt decision holds that an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one.”

After the Supreme Court decided Cramer v. United States, World War II produced ten more reported treason prosecutions pressed to conviction. One of these cases involved the conviction of Tokyo Rose,in 1952, who was later pardoned and died in 2006. In seven of these cases court opinions dealt with substantive and procedural doctrine concerning the elements of treason and the manner of proving it. Two of these cases, Chandler v. United States, decided by the First Circuit Court of Appeals in 1948, and Kawakita v. United States, decided by the Supreme Court in 1942 — have leading importance for the development of treason doctrine.

Chandler was an American citizen living in Europe at the outbreak of World War II and volunteered his services to the German government in continuing a war time propaganda program, among other things. Kawakita was a 14th Amendment U.S. citizen and also a Japanese national who worked for the Japanese government during World War II and abused American POW’s sent to work under his command.

Along with Haupt, all of these defendants — Haupt, Chandler, and Kawakita — were ruled to have been guilty of overt acts which aided an enemy of the United States, with intent to adhere to the enemy’s cause.

In 2006, the United States brought its first treason charge in over 50 years against an American citizen, Adam Gadahn, 28, who is considered a fugitive and believed to be in Pakistan. Gadahn has not been captured and appeared in a recent anti-Israel, anti-U.S. video as the “American al Qaeda”. According to the charges,

According to the charges, Gadahn appeared in five videos broadcast between October 2004 and Sept. 11, 2006, giving al Qaeda “aid and comfort … with the intent to betray the United States.” “Gadahn gave himself to our enemies in al Qaeda for the purpose of being a central part of their propaganda machine,” Deputy Attorney General Paul McNulty told a news conference. “By making this choice, we believe Gadahn committed treason — perhaps the most serious offense for which any person can be tried under our Constitution,” he said. McNulty acknowledged that Gadahn appeared to be involved only in propaganda for the Islamic militant group, not in planning any attacks.

Observations & Implications

Through a brief reading of the history of treason in the United States, it appears that there is a tension between the Court’s reliance on the limited definition of treason offered in the Constitution and the Congressional desire to label other behaviors as treasonous. The Supreme Court ruled in Haupt that:

Congress may not vary the elements of treason or escape the substantive constitutional definition or the requirement of two witnesses to the same overt act by attaching a different label to ‘levying war or adhering to an enemy’

In this context it appears that Congress and the Executive cannot create additional behaviors that are considered treasonous. This means it agencies, including the Department of Homeland Security, cannot create out of thin air a reason to call dissenters ‘anti-government terrorists’, which as an American, is pretty close to calling me treasonous.

Destroying first amendment rights is a gateway to treason charges. In my view, the misnamed ‘hate crimes legislation’ comes very close to curtailing free speech, not stopping hate. If free speech exercised in defense of our country is labeled as hate, treason, traitorous, or racist, then the line has been crossed and revolution is just around the corner.

The Educated Offense

Rather than react to the obot-in-chief and his minions as they throw accusation after accusation at American patriots for daring to dissent, we have become educated and can certainly respond proactively.

On being charged with treason for dissent, say regarding taxes, its simple, really: you are not waging war on the states, and, you are not giving aid to the enemy of the country and constitution. Further, neither the Congress, the President, or its agencies can create new classes of behavior and classify them as treasonous. End of story.

Regarding leveling a treason charge, be careful: it is a different term than the words “high crimes and misdemeanors”, “lawlessness”, “violations or abrogations of duty under the constitution”, “sedition”….and a dozen other terms. I hope to explore these concepts in coming essays.

Our Constitution requires us to use history as a guide and to apply these terms to our present situation. In the case of treason, as defined in the constitution, what actions today constitute (a) war upon the states, and (b) adhering to or giving aid and comfort to our enemies?

Some concerns I have about waging war on the states have to do with what I perceive as forms of warfare in the economic, health, and free speech area; certainly the declaration of martial law –if not approved by the states– could be considered the making of actual war on the states. A question I have is whether the deliberate reduction of our national defense by TOTUS will enable the enemy to wage war against us, and whether that would be considered treason? Under what category does behavior that risks our national defense fall?

Regarding the provision of aid and comfort to the enemy or adhering to to our enemies, I can think of nothing more important than Obama’s dual or triple citizenship status and why the Founding Fathers specified that only a ‘natural born citizen’ should be POTUS.

Is apologizing for America’s existence to our enemies “providing aid and comfort to our enemies”? How about placement and funding of GITMO prisoners in American communities or American jails? How about bowing to the Saudi King? How about being bribed by other countries? Obama identifies with other parts of the world and is conflicted in defending the United States. In so doing, he imperils our country. Is this treason?

I am interested to know what you think.

One Last Note!

For more than a year, this blog, all of the blogs on the roll on the right, and all of TD’s readers and writers have been sounding the alarm, riding that horse in the dead of night, shouting, that a storm of unknown magnitude is upon us. Just like the picture that heads TD’s blog.

“A nation can survive its fools and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable for he is known and carries his banners openly. But the traitor moves among those within the gates freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself… for the traitor appears no traitor: He speaks in accents familiar to his victims, and he wears their faces and their garments, he appeals to the baseless that lies deep in the souls of all men. He rots the soul of a nation; he works secretly and unknown in the night to undermine the pillars of the city; he infects the body politic so that it can no longer resist. A murderer is to be less feared.” ~ Cicero

This storm is upon us now, make no mistake. But nothing is inevitable for America, because love of country has, can, and will change all. It is just a matter of time.

In case you’re wondering, the Liberty Bell below is calling you, me, and all of America. The ‘prettiest sound on earth’ is the ring of freedom. case liberty bell calling america prettiest sound earth ring freedom
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2009/02/18 21:27:42

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