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ehnyah
08-23-2005, 10:24 AM
[embedded links: http://www.thenewamerican.com/artman/publish/article_2063.shtml]

Is it Treason?
by William Norman Grigg
August 19, 2005

Is public criticism of the Iraq occupation "treason," as the Bush administration's most ardent defenders insist?

"There are men walking around the streets tonight who ought to be taken out at sunrise tomorrow and shot for treason," complained former Secretary of War Elihu Root in late 1917. A close adviser to President Woodrow Wilson, Root was infuriated by the fact that some Americans opposed U.S. entry into World War I. Earlier that same year, Root had summarized the view of the Wilson administration regarding dissent: "We must have no criticism now."

The Wilson administration "viewed all opposition to its policies as `seditious,?" points out Professor Peter Irons of the University of California-San Diego in his new book War Powers: How the Imperial Presidency Has Hijacked the Constitution. That view, as applied to the war in Europe, was upheld in the Supreme Court?s 1919 Schenk v United States decision.

In that ruling, Chief Justice Oliver Wendell Holmes, writing for a unanimous court, held that anti-government speech during wartime was an overt "act" subject to regulation by Congress ? the clear prohibitions of the First Amendment against such regulation notwithstanding. According to Holmes: "When a nation is at war many things that might be said in time of peace are such a hindrance to its conduct that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any Constitutional right."

The assertion that there is a distinct "wartime" Constitution contradicts the court?s holding in the 1866 Ex Parte Milligan decision that the Constitution "is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances," and that none of its provisions "can be suspended during any of the great exigencies of government." In subsequent cases, the court backed away from Holmes?s quasi-totalitarian view that wartime dissent can and should be criminalized.

Unfortunately, the view expressed by Holmes in the Schenk decision, suitably dumbed down for the use by talk radio personalities and other Republican-aligned herd-poisoners, has been resurrected for the purpose of accusing peace activist Cindy Sheehan, mother of a soldier killed in Iraq, of giving "aid and comfort to the enemy" ?- that is, of committing treason -- by denouncing the Iraq War.

"Cindy Sheehan is using her dead son as a mechanism to give aid and comfort to the enemy during time of war, whether she understands that or not," asserts essayist Joseph Gutheinz of The Conservative Voice. Fox News commentator Bill O?Reilly, seeking a deniable way to traduce Sheehan as a traitor, has stated that "some families who also lost loved ones in Iraq believe what she's doing borders on treason." David Horowitz, a supposedly reformed Marxist radical, is more forthright than O?Reilly, accusing Sheehan and her fellow protesters of "conducting a psychological warfare campaign against their own country whose aim is to cripple our military mission in Iraq?. The fact that these people are using compassion to help destroy us make them more reprehensible not less. Grief is one thing; treason in wartime is quite another."

One obvious problem with this accusation is that our nation is not at war. Only Congress can declare war, and it hasn?t done so since December 8, 1941. A second is that the phrase "aid and comfort," as understood by the Framers, referred to providing material, not metaphorical, assistance to foreign enemies of the United States. In specifically defining treason as "adhering to [our] enemies," the Constitution is describing conscious acts such as espionage or sabotage, or providing shelter to enemy agents. This definition does not encompass public criticism of a president or any misguided war in which he has managed to entangle our nation.

Significantly, the government of British King George III ? the incipient despotism against which our Founding Fathers rebelled ? did not define treason as expansively as do neo-conservative Commissars like David Horowitz. In October 1775, months after the American struggle for independence had drawn first blood, King George delivered a war message to parliament that was received with something less than universal enthusiasm.

As recounted in David McCullough?s recent book 1776, one London newspaper denounced the escalating British war against the rebellious colonies as "unnatural, unconstitutional, unnecessary, unjust, dangerous, hazardous, and unprofitable." Another denounced the King, regarded by many as a dim-witted and shallow man, as "foolish, obstinate, and unrelenting" for his determination to take the country to war. Similar sentiments resounded during the legislative debate over the war speech. One critic described the King?s war plans as "big with the most portentous and ruinous consequences"; he was particularly opposed to sub-contracting troops from foreign powers, a move he called an "alarming and dangerous precedent."

Other Members of Parliament were more concerned about the potential impact the war would have on British power, prestige, and domestic liberties. "We are fighting for the subjection, the unconditional submission of a country infinitely more extended than our own," observed John Wilkes, Lord Mayor of London. A proud subject of the King and English patriot and self-described friend "to universal liberty and the rights of all mankind," Wilkes predicted that "no part of the subjects of this vast empire will ever submit to be slaves."

Of the war with the colonies, George Johnstone, a former British governor of West Florida, protested: "Men are to be brought to this black business hood-winked. They are to be drawn in by degrees, until they cannot retreat." George III?s war policy, Johnstone declared, had demonstrated "to every wise man on the continent of America, that all his rights depend on the will of men whose corruptions are notorious, who regard him as an enemy, and who have no interest in his prosperity."

The boldness with which critics of the Crown -- both in Parliament and the press -- unbosomed themselves of such pungent opinions demonstrates that forceful expressions of anti-war views did not qualify as treason under the reign of a King regarded by our Founders as a tyrant. Otherwise, given the fate prescribed by British law for those convicted of treason, George III?s critics would have kept their views to themselves.

Under the Treason Act of 1351 (which was in force during the reign of George III), the British government defined the charge of High Treason in terms similar to those found in the Constitution: It was applied to those who "levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere?." The specified punishment of those convicted of that offense was the following: "The prisoner shall be drawn on a hurdle to the place of execution, and, after execution, shall have the head severed from the body, and the body divided into four quarters." In brief, the treatment inflicted on Scottish freedom fighter William Wallace, as memorably depicted at the end of the film Braveheart.

Doubtless there are those among George W. Bush?s more devoted adherents who long to inflict similar punishments on Cindy Sheehan and other war critics ? in the name of preserving "freedom," of course.

http://www.thenewamerican.com/artman/publish/article_2063.shtml