Treason, Part II

Does the treason indictment point to a larger issue of fundamental importance to the United States? That's the question this post seeks to answer. First, I should note that since jotting my response to the recent decision by the US Justice Department to charge an Orange County Islamicist with treason, it's come to my attention that several legal experts have also seen through this charade:

"There's a real effort in the (Bush) administration to keep fear alive in the country," said Jonathan Turley, a George Washington University Law School professor.

"The timing of this case and the use of this charge seems to be a bit too coincidental with the election cycle," Turley said.

Turley said prosecutors could have charged Gadahn with providing material support to terrorists.

The treason charge, he said, "is for public consumption."

Bruce Fein, a constitutional law expert who served in president
Ronald Reagan's administration, said the charge was used to "up the ante as November approaches to say, 'geez, this is really, really, terrible, terrible, terrible stuff'" going on with Al-Qaeda.

Legal opinions on the case prompt new questions: Does this charge relate to a kind of "marketing plan" for the war on terror? The US President seems to be promoting a war-without-end, and the treason charge affirms that America is a nation at war:

Law experts noted the treason charge puts the "war on terror" on par with a conventional war, justifying the administration's description of the conflict.

"It is a way of hammering home the administrations's point that the war on terror is real war in a technical sense," said Eugene Fidell, president of the National Institute of Military Justice.

As treason is defined in the US Constitution, it clearly seems to require that the country be at war for the section to apply. The US Constitution defines treason this way:

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.

But what of a war against non-state actors? Eugene Volokh discusses the litmus test for a treason conviction here.

Americans ought to be asking themselves whether this ongoing state of war is in the country's best interests. Does continuing the "war on terror" make the US any safer? Does the "war" metaphor continue to serve a useful strategic purpose? Asking these kinds of questions, we discern that a far larger issue looms behind the treason indictment.

When James Fallows spoke with sixty experts on terrorism for an article entitled "Declaring Victory" published in the September issue of the Atlantic Monthly (summary here), he discovered a general consensus among terrorism authorities that Al Quaeda had been severely disabled; most believed that the greatest future danger posed by the terrorists to the United States lay in the damage that the US might bring upon itself should it over-react to a future attack. Fallows wrote, "the greatest threat posed by these (terror) groups is not the damage they can do directly, but rather the self-defeating, irrational, or excessive responses they can goad a target country into making."

Fallows argued that an open-ended state of war increases the likelihood of over-reaction, and imparts credibility to the terrorist agenda. These are not its only serious drawbacks; other disadvantages of "war" include its pernicious effect upon civil liberties, its tendency to elevate individual terrorists to positions of prominence on the world stage, its tendency to cheapen the notion of war through over-familiarity (now we see that a related concept -- treason -- is likewise at risk of devaluation), and its capacity to erode the quality of life for Americans by making them fearful.

The chain of events that culminated in World War I, an expert interviewed for Fallows' article pointed out, was triggered when an anarchist shot Austrian Archduke Franz Ferdinand. At the time, there were only two thousand anarchists in Europe; anarchists posed no existential threat to European civilization. However, because of the way European powers reacted to the assassination of the Austrian archduke, an otherwise insignificant anarchist could set off a chain reaction which eventually destroyed great empires.

Fallows came to the conclusion that the time has come to end the war on terror by declaring victory. I find it hard to fault the logic.

On the other hand, when the US government charges a propagandist with treason, the country takes another step down a road called "war on terror" -- a dark and lonely path fraught with perils of America's own making.