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Essays, Opinion, & Commentary |
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August 14, 2002 Something to Think About
by Gordon Francis Corbett
The Constitution names two kinds of traitors: those who levy war against the United States, and those who adhere to their enemies, "lending them aid and comfort." To levy war against the United States, a citizen must participate in some kind of rebellion without renouncing his citizenship. Fighting against the Union in our Civil War did not qualify: Confederate soldiers and sailors were citizens of a separate country. I know of no successful prosecutions of Type 1 traitors. American citizens have been charged with Type 2 treason for serving enemy nations after Congress has declared war. The most recent were World War II radio broadcasters. Iva Toguri, whom our government called, "Tokyo Rose," broadcast over Japan's radio station NHK as "Orphan Ann." Mildred Gillars, whom our government called, "Axis Sally," broadcast over Nazi Germany's Reichsrundfunk as "Midge." After the war, both were tried, convicted, and imprisoned for treason. Some say that Type 2 treason has been committed when Congress has not declared war. Prosecuting someone for Type 2 acts committed in peacetime implies that the actor's patron country is an enemy. This could anger that nation's larger and better-armed friends. Such considerations governed our conduct concerning the Korean and Viet-Namese Wars. Some authorities hold that the courts have "rescued" our officials from having to consider such an issue by saying that for an American to be a Type 2 traitor, he must serve a country on which Congress has declared war. Attorney Henry Mark Holzer, author of Aid and Comfort: Jane Fonda in North Vietnam, disagrees. He says that to be a traitor, an American needs only to help a nation our men are fighting. He cites the case of Jane Fonda, who journeyed to North Viet-Nam, toured various military sites, and broadcast surrender pleas over Radio Hanoi to American soldiers who were then fighting North Viet-Namese soldiers. That brings us to our current war. If the Taliban and al-Qaeda organizations work for no nation, all American members are Type 1 traitors: by helping either group, they levy war against the United States. On the other hand, if the Taliban and al-Qaeda work for one or more countries, the first group of authorities say that a Congressional declaration would be needed to make American members Type 2 traitors. Even then, to be traitors, the Americans would have to help the enemy after Congress made the declaration. Congress could not make them traitors retroactively, because the Constitution prohibits ex post facto laws. Mr. Holzer's group would say that Type 2 charges would apply because, when they acted, the traitors were working for a country our Armed Forces were fighting. Congress would not have needed to declare war. This disagreement may illustrate why the government might not prosecute any American Taliban or al-Qaeda captive for Type 2 treason: the legal waters are muddy. Attorney Herb Titus explains another aspect. When a country joins the United Nations, it renounces its power to declare war and surrenders its prerogative of deciding to use force to the U.N.'s Security Council. If true, this explains why, during the conflicts we have fought since World War II, we neither declared war nor prosecuted anyone for Type 2 treason. Leaving the United Nations will restore our independence, reinstate Congress's power to declare war, and thereby, remove one possible obstacle to the prosecution of Type 2 traitors. That sounds good!
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Something to Think About Index |
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