The Founders limited “treason” in the Constitution due to grave concerns it would be weaponized to criminalize dissent: exactly how the term is now routinely used.
Editor’s Note: This long, and very thorough discussion of Romney’s accusation of Tulsi Gabbard as a “traitor” is worth looking at. It includes a lot of detail and background information including a definition of what a traitor is according to the U.S. Constitution and the reasons the definition is narrow and definite. A couple of key phrases Greenwald builds to are: “Romney’s accusation that Lt. Col. Gabbard is guilty of treason is repugnant and false for numerous reasons,” which Greenwald then goes on to explain. He concludes: “Mainstream U.S. opinion-makers are now doing exactly what the founders most feared: abusing the concepts of “treason” and “traitor” to criminalize political dissent,” which should be of concern to all who dissent from prevailing mainstream political views, whether around Ukraine or other issues, and who fault the mainstream corporate media for beating the drums of war and for their non-critical coverage and sensationalizing of the Romney’s un-Constitutional accusations of Gabbard,, which may at best be Romney’s misguided political opinions but have no substance.
I can’t help but add a note about Julian Assange here. He is now being extradited to the U.S. to stand trial. For all intents and purposes he is being tried for dissent around U.S. official policies and actions, even though he is not a U.S. citizen. He has ,already been tried and convicted of ‘treason” in the minds of some. Of course, since he is not even a U.S. citizen, but a citizen of Australia, he could never be tried for treason in the U.S. And dissent is not a crime. But the weaponizing of dissent, even if not legal, is at play in Assange’s daring to challenge the war industry with the collateral damage video and the release of the Hillary Clinton emails over the controversy of her use of a private server for classified information instead of a official state server with security.
Sen. Mitt Romney (R-UT) speaks with reporters on Capitol Hill on Thursday, Feb. 10, 2022 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images); Lt. Col. Tulsi Gabbard, former Congresswoman from Hawaii (Wikipedia Creative Commons)
The crime of “treason” is one of the gravest an American citizen can commit, if not the gravest. It is one of the few crimes other than murder for which execution is still a permissible punishment under both U.S. federal law and the laws of several states. The framers of the U.S. Constitution were so concerned about the temptation to abuse this term — by depicting political dissent as a criminalized betrayal of one’s country — that they chose to define and limit how this crime could be applied by inserting this limiting paragraph into the Constitution itself; reflecting the gravity and temptation to abuse accusations of “treason,” it is the only crime they chose to define in the U.S. Constitution. Article III, Section 3 of the Constitution states:
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.
Treason was the only crime to be explicitly defined and limited by the Founders because they sought “to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition.” In other words, the grave danger anticipated by the Founders was that “treason” would radically expand to include any criticisms of or opposition to official U.S. Government policy, activities they sought in the Bill of Rights to enshrine as an inviolable right of U.S. citizenship, not turn it into a capital crime.
In a 2017 op-ed in The Washington Post, law professor Carlton Larson reviewed the increasing tendency to call other Americans “traitors” and explained: “Speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution.” Regarding the promiscuous use of the word by liberals against Trump, Professor Larson wrote: “An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies.” For that reason, even Americans actively helping the Soviet Union during the Cold War could not be accused of “treason” given that there was no declaration of war against the USSR. Using the most extreme hypothetical he could think of to illustrate the point, he explained: “Indeed, Trump could give the U.S. nuclear codes to Vladimir Putin or bug the Oval Office with a direct line to the Kremlin and it would not be treason, as a legal matter.”
For that reason, treason has rarely been prosecuted in the U.S.: “according to the FBI, the U.S. government has successfully convicted fewer than 12 Americans for treason in the nation’s history.” While Americans who rebelled against the British crown were technically traitors, as were those who waged war against the union during the Civil War, prosecutions have been exceedingly rare. That means that through all the various wars the U.S. has fought from the 18th Century until now — the War of 1812, the Spanish-American War, the Mexican-American War, the two World Wars of the 20th Century, the Cold War, the wars in Korea and Vietnam, the dirty wars in Central America, the wars of Afghanistan and Iraq, the War on Terror — the number of total treason prosecutions is less than a dozen. That is because Americans understood, based on constitutional constraints and Supreme Court law restricting its scope, that this crime is very difficult to charge and applies only in the narrowest of circumstances.
That understanding is now gone. During the War on Terror and the invasion of Iraq, neocons routinely accused war opponents and skeptics of their “anti-terrorism” civil liberties assaults of being traitors. David Frum’s stint as Bush White House speechwriter enshrined this “patriotism” attack as his and their speciality. Bush and Cheney’s speeches, especially leading up to the invasion of Iraq, the 2002 midterms, and then the 2004 re-election campaign, inevitably featured innuendo if not explicit claims that Americans opposed to their war policies were against America and on the side of the terrorists: i.e., traitors. The Lincoln Project’s Rick Wilson produced a campaign ad for the 2002 Georgia Senate race morphing the face of the Democratic incumbent Max Cleland, who lost three limbs in Vietnam, into Osama bin Laden’s. Upon leaving the White House, Frum continued to build his career on impugning the patriotism and loyalty of anyone — right, left, or in between — who opposed all the various wars he wanted to send other people’s children to go fight and die in.
But it was the Trump era that transformed treason accusations from a periodic transgression into the standard, reflexive way of criticizing Trump and his movement. Indeed, Frum now performs the same service as he did during the early Bush years at The Atlantic, CNN and MSNBC, where he is most beloved by Democrats for casting this same aspersion against any opponents of Democratic Party politicians. From the middle of the 2016 campaign to this very day, accusing one’s political adversaries of being traitors to the U.S. — in the form of Russian agents — have become so common that Democrats now barely know any other insult to express. An entire generation has been trained to believe that “treason” is the crime of expressing views that undermine Democratic Party leaders, diverge from the U.S. security state, and/or dispute the consensus of the U.S. corporate press.
The four-year CIA/media “scandal” that dominated the Trump years was nothing but one protracted, melodramatic treason accusation. The dominant narrative insisted that Trump and his allies were controlled by Moscow, subservient to the Kremlin, and were acting to promote Russian over American interests. That Trump was loyal not to the country that elected him but, instead, to an adversarial nation is something Democrats now believe as an article of faith.
So trivialized and banalized were accusations of treason over the last six years that body language analysis became sufficient to allege it. When Trump and Putin met in Helsinki in July, 2018, journalists and politicians joined random DNC loyalists in citing Trump’s purportedly submissive posture, tweeting the hashtag “TreasonSummit” over and over. The Washington Post tapped “body language experts” to announce in its headline: “In battle for nonverbal dominance at U.S.-Russia summit, Putin was the clear winner, experts say.” Former CIA Director John Brennan pronounced: “Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous.” As Trump traveled to that summit, the most embittered political loser in world history, Hillary Clinton, tweeted: “Question for President Trump as he meets Putin: Do you know which team you play for?”; the next day, following their joint press conference, she proclaimed: “well, now we know.”
John O. Brennan
Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of “high crimes & misdemeanors.” It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you???
One of the former New York Times reporters hired by The Intercept in a needy attempt to vest the site with popularity among the corporate press, James Risen, rode the Helsinki media wave with a 2018 article headlined: “Is Trump a Traitor?” He of course answered it with innuendo designed to suggest an affirmative answer, and was duly rewarded with an appearance the next night on Chris Hayes’ MSNBC show, where Risen and the host explored the same theme of treason. House Speaker Nancy Pelosi “asked” in 2019: “What does Putin have on [Trump], politically, personally or financially?” Major magazine covers frequently showed the Kremlin (or what they mistook as the Kremlin) taking control of the White House. All of that carried over to the hysterical and ongoing exaggeration of January 6, which was not a mere riot but an insurrection, a “coup” attempt, incited and carried out by “traitors” to the United States.
Hillary Clinton’s campaign relied on little else beyond accusing Trump and anyone else who opposed her of being a Kremlin asset. In 2020, Clinton decided to publicly claim, without a whiff of evidence, that then-Democratic-presidential candidate Rep. Tulsi Gabbard, who volunteered to fight in the Iraq War which Clinton demanded and who is now a U.S. Army Reserves Lt. Colonel, was being “groomed by the Russians” to run as a third-party candidate (as usual, Clinton lied: upon dropping out of the Democratic primary, Gabbard immediately endorsed Joe Biden for president).
(That someone is an American war veteran or current member of the U.S. military, like Lt. Col. Gabbard, does not and should not immunize them from criticism. That goes without saying. Members of the military are just as prone to error or other failings as anyone else. But — contrary to the current liberal understanding — there is an enormous difference between merely criticizing someone and accusing the person of being a traitor and/or a Russian agent. And it does seem advisable to expect that people who constantly cheer U.S. wars and demand that others besides themselves and their children go fight and die in them — such as Hillary and Sen. Mitt Romney (R-UT) — at least think twice before accusing those who have volunteered to fight for their country in those wars of being guilty of treason or being an agent of a foreign power. Such caution — based on the recognition that “traitors” to the U.S. are unlikely to volunteer to risk their lives for the U.S. — doesn’t seem like too much to ask.)
As pervasive as “traitor” accusations were during the Trump presidency, the Russian invasion of Ukraine has elevated this “treason” mania to never-before-seen heights. Everyone and anyone who questions or deviates in any way from the prevailing bipartisan consensus is accused of being a treasonous Russian agent based on the slightest infraction. The two public figures most vilified as traitors in the lead-up to the Russian invasion of Ukraine were former Rep. Tulsi Gabbard (D-HI), now a U.S. Army Reserves Lt. Colonel, and Fox News host Tucker Carlson. In that pre-invasion vilification campaign, a preview was offered for how intolerant the climate would be for any questioning, no matter how rational or partial, and how casually the treason accusation would be weaponized against anyone who spoke off-key.
Indeed, the comments of the former Congresswoman and the Fox cable host which triggered this avalanche of public accusations were stunningly benign. Gabbard’s crime was that she echoed twenty years of statements by U.S. officials and scholars across the spectrum by arguing that NATO expansion up to the Russian borders, and particularly the prospect of membership for Ukraine, was genuinely threatening to Moscow; thus, she argued, the U.S. and NATO, in order to attempt to diplomatically avert a horrific war, should formalize its intent not to offer NATO membership to the country occupying the most sensitive and vulnerable part of the border with Russia. Carlson’s sin was also to express a view that many in Washington — including former presidents Obama and Trump — had long affirmed: namely, that while Ukraine is not a vital interest to the U.S., it is and always will be to Russia, and therefore there is no reason the U.S. should even consider involvement in a military confrontation between the two over that country. As The Atlantic‘s editor-in-chief Jeffrey Goldberg put it after extensively interviewing Obama in 2016 about his foreign policy “doctrine”:
Obama’s theory here is simple: Ukraine is a core Russian interest but not an American one, so Russia will always be able to maintain escalatory dominance there. . . . “The fact is that Ukraine, which is a non-NATO country, is going to be vulnerable to military domination by Russia no matter what we do,” [Obama] said.
One need not agree with Gabbard’s proposed pre-war diplomatic solution to see the utter madness of accusing her of being a traitor or Russian agent for advocating it (we will never know whether it would have worked, since Secretary of State Antony Blinken repeatedly rejected such a concession based on the apparently sacrosanct determination that the U.S. “will uphold the principle of NATO’s open door” even if that “open door” is situated right on the most sensitive region of Russia’s border, which was twice used in the 20th Century alone to attack them, costing them tens of millions of Russian lives). Nor must one agree with Carlson’s view — that Ukraine and its borders are of insufficient strategic importance to the U.S. to warrant risking American treasure or lives (to say nothing of a potential nuclear war) to defend it — in order to find repugnant the notion that this is a “treasonous” thought to express. Yet each of them was repeatedly and vocally accused of treason and being a Kremlin apologist if not an outright asset merely for advocating such intrinsically rational perspectives, ones long deemed mainstream in Washington until about three weeks ago, when they instantly became taboo.
This week featured perhaps the lowliest and sleaziest treason accusations yet. On Sunday night, Gabbard posted a two-minute video online in which she said something completely indisputable: “indisputable” in the sense that the U.S. Government itself admits it and nobody contests it. She did not say that there are bio weapons labs in Ukraine: either ones funded by the U.S. or anyone else. What she did say — in her characteristically clear and blunt manner — is that there are labs in Ukraine in which dangerous pathogens are being cultivated and stored, and that it is reckless in the extreme for the U.S. and/or Ukraine not to have secured or disposed of them when Russian troops were massed on the Ukrainian border, indicating the high possibility of an invasion that could result in these pathogens being accidentally released during war.
Gabbard’s warning is scarcely different from what U.S. Under Secretary of State Victoria Nuland said when testifying last Monday in the Senate, in response to Sen. Marco Rubio’s (R-FL) question of whether “Ukraine has biological or chemical weapons” (we examined Nuland’s response here); what U.S. officials themselves claimed in response to questions about Nuland’s comments; and what Reutersreportedwere the warnings from the World Health Organization about the dangers of Ukrainian labs. A separate Reuters article designed to debunk Russian accusations about bioweapons labs in Ukraine noted that Ukraine’s “laboratories have received support from the United States, European Union and World Health Organization.”
And as we documented in a video report broadcast this week, the distinction between a “bioweapons lab” and what Nuland described as Ukraine’s “biological research facilities” is often mere semantics in U.S. jargon. The U.S. indisputably develops biological weapons (the 2001 attack using highly sophisticated weaponized anthrax strains came from a U.S. Army lab, according to the FBI, and the U.S. has funded the work of Chinese scientists to manipulate coronaviruses to make them more contagious and lethal), yet nonetheless insists they are not “biological weapons” because the motive in developing those weapons is to study, not deploy, them. Thus, if Ukraine’s labs had weaponized biological pathogens but the U.S. believed they were developed for the purpose of studying rather than unleashing them, the U.S. would insist that there are no “biological weapons” in these labs even though they are identical to what one would manufacture with a more nefarious intention.
Despite Gabbard’s anodyne concerns, the response to her, as well as to Carlson for featuring guests (including me) to discuss this biolabs story, has been as dangerous as it is unhinged. On March 10, The Daily Beast posted a sensationalized tabloid tweetpromoting its article about Gabbard that went mega-viral, designed to feed into the innuendo that Gabbard is a Kremlin agent. The tweet, retweeted by ten thousand people, screams: “EXCLUSIVE: Russian-American national Elena Branson was indicted this week for lobbying for pro-Kremlin policies while not registered as a foreign agent. She gave to one U.S. politician: Tulsi Gabbard.” One has to read to the fifth paragraph of the article to learn that “the combined total of those donations isn’t colossal by any means—a whopping $59.95.”
To ensure that their smear of Gabbard as a likely Kremlin asset is not dissipated by this rather dispositive fact — that an American citizen whom Gabbard never met and does not know donated a trivial sum to her campaign —The Daily Beast quickly added that the donations, despite the paltry and laughable sum, “do raise questions about why an alleged Russian agent, tasked with currying favor with U.S. politicians, would zero in on Gabbard, and only Gabbard.” In the article’s very first paragraph, the smear artists at this tabloid made their intentions clear: that this “new development this week is sure to reinforce the half-jokes that Gabbard is a ‘Russian asset‘; as it turns out, her campaign took money from one” (by “Russian asset,” The Daily Beast mean an American citizen accused by the DOJ but not convicted, a vital distinction which all authoritarian state-media outlets like The Daily Beast no longer recognize).
On Monday, Sen. Mitt Romney (R-UT) considerably escalated the attacks on Gabbard’s patriotism. In a mega-viral tweet, the four-time-draft-dodging, son-of-a-rich-politician, investment-banker Republican — who skipped the Vietnam War after protesting in favor of it, opting instead to send other Americans to fight and die, and then justified the fact that all five of his sons avoided military service on the grounds that helping him get elected was their “service” — accused the life-long Army officer and Iraq War veteran of being a traitor:
Romney’s endorsement of this “treason” accusation seemed to have given the green light to liberals to reveal their true authoritarian selves in all of their grotesque, naked darkness. On Monday, the hosts of ABC’s The View, led by Ana Navarro, demanded that Gabbard and Carlson be criminally investigated by the DOJ over their views about the war in Ukraine (on Twitter, Navarro reaffirmed her call for a criminal investigation of the pair, arguing that “persons engaged in domestic political or advocacy work on behalf of foreign principals” are engaged in a crime absent FARA disclosures: an odd view for someone whose career began by pressuring the U.S. Congress to fund and support Nicaragua’s death squads used by the contras — of which her father was a member). The discredited-and-fired former FBI agent Peter Strzok suggested that the two were involved in some form of sinister “coordination.” The founding father of the current iteration of MSNBC, Keith Olbermann, went a step further and argued that the duo should be militarily detained and given a trial only if they are lucky and the U.S. decides to be generous. People across the spectrum, including the most banal liberal YouTube hosts, cheered Romney’s deranged “treason” accusation against Gabbard.
Romney’s accusation that Lt. Col. Gabbard is guilty of treason is repugnant and false for numerous reasons. First, as the vehemently anti-Trump constitutional law site Just Security explained in 2017 as it became increasingly acceptable to call Trump a “traitor” over his alleged ties to Russia, the Constitution confines “treason” to aiding and abetting an actual, declared “enemy” of the U.S., a term which Russia — for reasoning that applied then and now — does not come close to meeting (emphasis added):
Whatever one thinks of Russia, Vladimir Putin, or the current state of relations between it/them and the United States, we are not at war with Russia. Full stop. Russia is therefore not an “enemy” of the United States. Full stop. Collaborating with Russia is a serious allegation, and may violate other federal laws. But treason is something very special, unique, and specific under U.S. law–and, as my friend and UC-Davis Professor Carlton Larsen has long explained, for good reason. Let’s keep it that way.
In an article the following day, responding to their disappointed critics who wanted desperately to call Trump a “traitor,” that site’s constitutional law scholar Steve Vladeck explained how narrow of a term “treason” is due to judicial rulings applying its scope. Among other things, a country cannot be deemed to be at “War” with the U.S. or an “enemy” of it absent a Congressional declaration of war against it, which — thankfully — does not exist for Russia:
There is no international armed conflict between the United States and Russia, nor has Congress done anything to recognize one, so “war” is out….[A] statute enacted not long after the treason statute–the Alien Enemy Act of 1798–is much more specific about who alien “enemies” are, referring to “all natives, citizens, denizens, or subjects” of a country against which the United States has “declared war.”
This is an extremely narrow definition (we haven’t declared war since 1942), and does not even cover the opposing side in un-declared wars, such as Vietnam, the conflict against al Qaeda and its affiliates, and so on. But even assuming, for the sake of argument, that the treason statute is broader than the Alien Enemy Act, and that opposing forces under more limited use-of-force authorizations are indeed “enemies” for purposes of the treason statute (there are vanishingly few examples of such prosecutions), it still requires, at a minimum, the existence of an armed conflict under both domestic and international law–something noticeably lacking with regard to the United States and Russia.
So it is impossible — legally and Constitutionally speaking — to be a “traitor” to the U.S. or be guilty of “treason” by helping Russia in any way, given that the U.S. is not at war with Russia and that country cannot be considered an “enemy” of the U.S. outside of the crazed confines of liberal cable networks and newspaper op-ed pages.
But the more important reason why Romney’s accusation is both ignorant and authoritarian is that expression of political views — which is all anyone can accuse Gabbard and Carlson of having done — cannot be criminalized at all, let alone deemed treasonous. There is simply no question that Gabbard’s “guilty” opinions (the U.S. should have promised not to offer NATO membership to Ukraine and it is urgent that Ukraine’s dangerous biological labs be secured) are constitutionally protected speech under the First Amendment. That would be true even if her expressed views had not been long-standing mainstream opinion in the West for the last two decades. The same is obviously true of Carlon’s argument that Ukrainian borders are not vital enough interests to the U.S. to warrant his country’s involvement in that conflict.
In other words, mainstream U.S. opinion-makers are now doing exactly what the founders most feared: abusing the concepts of “treason” and “traitor” to criminalize political dissent. As the Seventh Circuit explained in its 1986 ruling about treason and sedition: “[t]he reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.” As two constitutional scholars, Paul Crane and Deborah Pearlstein explained (emphasis added):
While the Constitution’s Framers shared the centuries-old view that all citizens owed a duty of loyalty to their home nation, they included the Treason Clause not so much to underscore the seriousness of such a betrayal, but to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions.
This danger of weaponizing “treason” accusations against dissenters is obviously heightened during wartime. The neocons’ propensity to hurl treason accusations at anyone opposing their wars is part of what made them so despised before they were re-branded as liberal heroes of the #Resistance. And most of the worst civil liberties crises in U.S. history arose from the desire to label war dissidents or those suspected of misplaced allegiances as “treasonous”: the Alien and Sedition Act of 1798, the 1917 Espionage Act and Woodrow Wilson’s accompanying prosecutions of war opponents, the internment of Japanese-Americans, the grave excesses of the McCarthy witch hunts. But ever since Trump’s election began to appear possible, accusing political opponents of being traitors became a staple of liberal discourse, and has greatly intensified in the wake of both 1/6 and now the war in Ukraine.
One reason Romney’s “treason” allegation against Gabbard attracted so much attention is because, as a wealthy scion of a political and financial dynasty, Romney is perceived (or at least expected) to be more sober and responsible than the standard cable news or op-ed #Resistance liberals, who call people “Russian agents” with greater frequency and ease than most people buy socks. Yet the fact that the 2012 GOP presidential nominee so recklessly, inaccurately and dangerously hurled this smear, this accusation of grave criminal wrongdoing, against Gabbard illustrates just how authoritarian and repressive the current climate has become.
If there is any one overarching, defining hallmark of a tyrannical culture, it is the refusal to tolerate any dissent from or questioning of official government policy, and to criminalize such dissent by equating it with treason. Indeed, many of the same Americans who are doing exactly this love to flamboyantly express horror as Russia does the same against its own war opponents.
It is extremely difficult, if not impossible, to find any despot in history who does not weaponize accusations of “treason” against dissidents as a central instrument for control. That U.S. discourse has now descended completely to that level is barely debatable. Just look at the last forty-eight hours of treason accusations against Gabbard, to say nothing of the last six years of liberal anti-Trump mania, to see how acceptable and reflexive such behavior has become.
Glenn Greenwald is the author of several bestsellers, including How Would a Patriot Act? and With Liberty and Justice for Some. His most recent book is No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State. Greenwald is a former constitutional law and civil rights litigator. He was a columnist for The Guardian until October 2013 and was the founding editor of the media outlet, The Intercept. He is a frequent guest on Fox News, Rolling Stone and various other television and radio outlets. He has won numerous awards for his NSA reporting, including the 2013 Polk Award for national security reporting, the top 2013 investigative journalism award from the Online News Association, the Esso Award for Excellence in Reporting (the Brazilian equivalent of the Pulitzer Prize), and the 2013 Pioneer Award from Electronic Frontier Foundation. He also received the first annual I. F. Stone Award for Independent Journalism in 2009 and a 2010 Online Journalism Award for his investigative work on the arrest and detention of Chelsea Manning. In 2013, Greenwald led the Guardian reporting that was awarded the Pulitzer Prize for public service. AUTHOR SITE