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Treason and Our Current War
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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