Treason...eh!
Bet ya his lawyer comes up with the Patty Hearst defense!
I'd like to see him hang though. Our troops deserve better than having these ilk and the media harangue them 24/7

A nation can survive its fools, and even the
ambitious. But it cannot survive treason from
within. An enemy at the gates is less formidable,
for he is known and carries his banner openly.
But the traitor moves amongst those within
the gate freely, his sly whispers rustling through
all the alleys, heard in the very halls of government
itself. For the traitor appears not a traitor; he
speaks in accents familiar to his victims, and
he wears their face and their arguments, he
appeals to the baseness that lies deep in the
hearts of all men. He rots the soul of a nation,
he works secretly and unknown in the night
to undermine the pillars of the city, he infects
the body politic so that it can no longer resist.
A murderer is less to fear. -- Marcus Tullius Cicero

But on the other hand, the Founding Fathers made that charge extremely difficult to prove up for a reason: in the days of King George III of England, the charge of treason was flung about willy-nilly as an all-purpose way to shut one's political enemies up -- permanently.

This is why treason is the only crime defined in the Constitution (Article 3, Section 3):

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.

In the cases of the NYT and Gadahn, witnesses are easy to come by. The only question is, did their deeds constitute "adhering to their enemies, giving them aid and comfort".

In the NYT cases there are other crimes that the editor and specific reporters can be charged with. From the discussion on Powerline, it certainly seems that they could be prosecuted for the NSA story as principals in the crime. In the SWIFT story case, there is another case working it's way through the system that, as it currently stands, confirms that private citizens can be prosecuted for espionage.

There is one other hazard facing the NYT crew. They know the identities of the people who leaked them the stories, who definately did break the law. If they refuse to give up those leakers, Obstruction of Justice is not the only thing they couuld be charged with.

USC Title 8.1.1.3

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Note that this is entirely seperate from the issue of whether or not they are principals in the original crime, the crime here would consist in protecting the leakers by refusing to identify them.

Shortly after the SWIFT story came out, a pool mentioned on Polipundit reported that 55% of Democrats whanted the NYT prosecuted. I don't think there is any real political risk in prosecuting the NYT and LA Times culprits, let alone the leakers.

I'll try this again, since another comment has been approved after I posted mine (or I thought I did).

I'm not getting how you get "hard to prove" from the definition of treason in the Constitution. It seems remarkably easy to prove to me.

Rightwingprof:

Your comment posted fine; you just posted it in the wrong topic! It was in Beyond the Democratic Event Horizon, along with my response [though both are gone now].

I should have noticed it was in the wrong place, but I read a lot of comments.

I wonder if there is any way I can move your comment and my response? Let me see if I can figure that out...

Well, there seems no easy way to switch a comment from one post to another. Since all the entries and comments in Movable Type are just data in a database, I'll bet I could do it by editing the database itself, if I knew how to do that.

But in this case, since you repeated the question (in the correct post this time), I'll just delete the other two and append my answer here:

Rightwingprof:

Consider a murder case like the O.J. Simpson case, but without the celebrity: the defendant would easily be convicted.

But that would be insufficient for a treason case, because nobody saw him do it.

It's tough, as a general rule, to get two eyewitnesses willing to testify to something that most people prefer to do on the sly.

Dafydd

Millions of people are witnesses. Videotapes.

Ya, we see the videotapes, but the crime isn't APPEARING to be in a videotape; it's willingly making the tape (or distributing it, etc.).

The witnesses can't just say that they saw him in a videotape; the videotape is merely evidence, not a crime. They'll haver to say they saw him making it, or distributing it, or aiding and abetting its distribution... Etc.

I'm reminded of the legal defence of the Snark.

Rightwingprof:

Millions of people are witnesses. Videotapes.

I highly doubt that any judge would say that watching a videotape was the same thing as being a witness to a crime, in the sense that is required by the Constitution.

(If so, then wouldn't reading some document written by the defendant also make somebody into a "witness?" Do you believe that's what the Framers intended?)

I see that Wtanksleyjr beat me to the punch.

Dafydd

"Ya, we see the videotapes, but the crime isn't APPEARING to be in a videotape"

He is on the videotape, giving aid and comfort to the enemy. That's clearcut treason, and all the witness needed.

Rightwingprof:

What are you a professor of, and where?

Dafydd

Why do you ask? And why do you insist that a judge would not view a call to murder American soldiers on tape, or rather the jury watching it, witnessing treason? If that's not witnessing treason, then nothing is.

Both Stewart and Lindh were clearly guilty of treason, and should have been charged with treason.

Rightwingprof:

Why do you ask?

Because your handle ends with "prof," which I take to be the abbreviation of professor; this gives you the air of authority... and when you make flat statements, such as that viewing the bank video of a robbery makes you an eyewitness to that robbery, the implication is that you are a law professor and have special knowledge that us non-lawyers lack.

This intimidates the rest of us, and makes us shuffle about and ineffectualy flail at phantom flies we imagine lighting upon us.

So I want to find out if I'm debating a law professor, or a professor of Mediterranean archeology, depressing German literature of the post-war period (which has its own endowed chair at many universities, I'm told), or 19th century Persian nose-flute music... which latter three would put you on the same level of non-authority on this subject as the rest of us!

Why are you so cagey? I have a BA and MA in mathematics from UC Santa Cruz, 1982 and 1984. There, I said it. I'm not proud, but what can one do, with the price of a college education these days?

My pronouncements on the law arise entirely from my general lay understanding of it (from watching Perry Mason) and delusions of being a sea-lawyer -- which are well known to my readers and firmly resented, but already factored into my general lack of credibility on any subject other than the late 1950s television series Zorro, my sole area of real expertise.

How about you?

Dafydd

I am no expert on this, but Eugene Volokh discussed the issue in the LAT and said:

To convict Gadahn, the government must catch not just him but two witnesses who can testify to his participation in the videos, unless it can persuade him to confess in open court. Simply introducing the videos would likely not suffice because the Constitution calls for witnesses, not just tangible evidence or the testimony of people who saw videos of him making the propaganda messages sometime after the fact.

Perhaps a court might conclude that, just as the Constitution's references to "speech" and "press" have been read to cover movies and the Internet, and just as the document's authorization of "Armies" and a "Navy" has been read to also allow air forces, so the "Witnesses" requirement should be adapted in light of technological changes to cover people who had seen the event by video. Adapting constitutional text in light of technological changes — as opposed to social or ideological changes — is a broadly accepted technique, even among judges who usually focus on the Constitution's original meaning.

Yet the ease with which videos can be doctored counsels in favor of reading "Witnesses" strictly, and if the term is so read, the treason prosecution will require witnesses who personally saw Gadahn working in the propaganda effort.

Sounds pretty convincing.

Patterico:

Thanks; at last we have some input from somebody with a plausible claim to expertise in the matter.

Taking Volokh's thought experiment one step further, since the videotape would presumably have already been introduced as evidence -- why bother going through the farce of having two people testify only that they saw the videotape... which the judge and jury could see just by running it themselves?

To me, that make a mockery of the constitutional provision: would the prosecution actually grab two people randomly off the streets, screen the video, then make them sit up on the stand and say "I saw the videotape?" And then excuse them without any further questions.

What would the defense do, question whether one or both might actually be legally blind, therefore incapable of having seen it?

This is ludicrous. The court has the videotape; it can view the tape for itself. What would the witnesses add, other than testifying that they, too, like everybody else, looked at the same videotape?

(Maybe you could screen the thing, then call a couple members of the jury to testify that they watched it during the screening.)

It would mean there was no constitutional requirement at all, or else a completely nonsensical one.

Much as I want to see Gadahn get the drop, were I the judge, I would insist there be two physical human beings who had personally, at the scene, witnessed him saying those things before I would allow the prosecution on that charge to proceed.

I gather from his quotation that Eugene Volokh would do the same.

Dafydd

"Taking Volokh's thought experiment one step further, since the videotape would presumably have already been introduced as evidence -- why bother going through the farce of having two people testify only that they saw the videotape... which the judge and jury could see just by running it themselves?

To me, that make a mockery of the constitutional provision: would the prosecution actually grab two people randomly off the streets, screen the video, then make them sit up on the stand and say "I saw the videotape?" And then excuse them without any further questions.

What would the defense do, question whether one or both might actually be legally blind, therefore incapable of having seen it?"

That's exactly what I've been saying, yet you've been arguing with me. Adding a witness is pointless when we have the videotapes. Everybody who has seen the videotapes is a witness.

Rightwingprof:

That's exactly what I've been saying, yet you've been arguing with me.

No, you've missed the point, RWP. I argue that because the scenario above is ludicrous, and because the judge will not simply jettison the pesky constitutional requirement, he will instead hold that the Constitution requires two actual, real, bona-fide eyewitnesses who personally witnessed the crime themselves in the physical presence of the accused, not merely on videotape.

And that's why it's a tough crime to prosecute.

Perhaps they have two such witnesses; I suspect they do, because I cannot believe they would trumpet a charge of treason if it depended upon a judge accepting such a cockamamie interpretation of the Constitution -- an interpretation which has never before been made by any judge anywhere.

U.S. Attorneys generally dislike making fools of themselves.

Dafydd

So you think eye witnesses -- highly unreliable testimony, by the way -- are more reliable than a videotape? As to what the framers intended, they didn't have videotapes, did they?

Rightwingprof:

This conversation has become pointless, as you are now inventing strawmen to beat up. I stand on my previous arguments.

Dafydd

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)

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