Tuesday, April 23, 2013

The Boston Bombing Suspect Should Be Tried For Treason

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. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
-The Constitution of the United States  Article III. Section 3. Clause 1.

First, he is an American citizen. He took the oath and we gave him his certificate of citizenship. That's that. He is entitled to all of the civil rights that anyone would be when accused of a heinous crime, including a lawyer and the right to a speedy trial before a jury.

With that out of the way the question has been much debated about what to charge him with and where to try him. There are a myriad of crimes he is alleged to have committed. But there is one charge that hasn't been mentioned that I think should get some serious consideration.

Why not charge him with treason?

Some uber-strict constructionists have attempted to argue that treason can only be charged if there is a formal state of war. But that is not the case. The very narrow constitutional definition refers to levying war against them (the United States), adhering to their enemies or providing them with aid and comfort. Surely Islamic terrorists are our enemies. And a formal declaration of war is not required to recognize that someone is levying war upon us. In any case Congress has passed resolutions that the courts have recognized as the functional equivalent to a war declaration. Further there have been instances of persons tried for treason for aiding and abetting insurrections which could not as a matter of international law involve a formal declaration of war.

I feel rather strongly that his case should include a charge of treason both as a matter of law and on principal. He came to this country as a refugee. We took him in, sheltered and educated him. Later he voluntarily took an oath of allegiance to our country. Then he allegedly goes and sets off bombs killing and maiming scores of people as part of a worldwide terrorist war against us.

If that's not treason we might as well just draw a line through that part of the Constitution.


CJ said...

Nobody gets charged with treason anymore, not even the likes of Robert Hanssen and Aldrich Ames because the Constitutional burden of proof is so high (two witnesses to the same overt act, or a confession in open court). You can get the same results (up to and including the death penalty) without jumping through those hoops.

Phil said...

I agree with you, for the reasons you lay out, and also to forcefully re-establish the reality that such a thing as treason exists.

rabidgandhi said...

Not that I do not share your horror at these unspeakable deeds, but I am curious: would you also have preferred the treason charge for advocates of extreme anti-governmental ideas such as Jared Loughner or Timothy McVeigh? Also, would you classify all three of these atrocities as terrorism?

I think a lot of it hinges on what you mention about adhering to 'terrorist' groups. The latest I heard was that the FBI believes the two brothers in this case acted alone with no connexions to any groups. This was also true of McVeigh and Loughner. If we dispense with this qualification, might it not make it necessary to charge all of the school shooting perpetrators with treason as well?

John (Ad Orientem) said...

In McVeigh's case, I think a treason charge might have been possible though I don't think it is as clear cut as the case in Boston. In the case of Loughner, no I would not prosecute him for treason as his offense does not appear to have had the sort of broad political motivation that is clear in the other cases. He wasn't trying to destroy the country.

The fact that the two terrorists were not directly affiliated with an enemy state or entity doesn't exclude a possible treason charge. It is sufficient that they showed their support for them and gave aid and comfort to their cause. And certainly the act of setting off bombs given their motivations and allegiance would constitute levying war on the these Untied States.

rabidgandhi said...

OK good. So if I understand you, instead of affiliation, what is important is 'motivations and allegiance'.

First I think it should be noted that right now the general public has zero certainty as to the bombers' motivations or intentions. To me it looks very likely that you are correct about his motivations, but at this early stage we should at least tread cautiously in light of the wild conjectures in the media to date.

That said, I think the Obama DOJ (given its history of prosecutorial overreach with laws such as the Espionage Act and the 2012 NDAA) would be madly enthusiastic about your idea, but the only reason they wouldn't try it would be a fear of not getting away with it in court, (although given the judiciary's supine position in national security cases, they might have a fighting chance). A court might not be as quick as you to throw out the adherence requirement and rely solely on a super-broad interpretation of the 'global war on terror'.

Still I think a treason conviction would be a disastrous precedent. If there is one certain pattern in history it is that power systems (esp. governments) will always (always!) use security incidents where the public is united against an attack to increase their own powers beyond what they could do otherwise.

That is my issue with the case here and your argument for a treason charge. Once the bar is set this low for treason, it essentially becomes any act intended against the government that might make the US's enemies happy. This is exactly the (horrendous) position the Obama DOJ has taken in cases such as Holder v. Humanitarian Law, and it could very easily be applied to anyone protesting government policies.

The fact is the bombers did exactly what they are accused of: using a weapon of mass destruction to cause death. The charge could carry the death penalty. Any further charges would only serve to set an atrocious precedent whilst having no effect on this case.

John (Ad Orientem) said...

Actually what is important to me is...

1. They came to this country as refugees and then voluntarily swore allegiance to it.
2. They thereafter aligned themselves with the enemies of the United States, and waged war upon us.

What you seem to be doing is kinda what I referred to in my original post. You seem basically to want to draw a line through that part of the Constitution.. If (an important qualifier) the surviving suspect is in fact guilty of what we have been lead to believe, which would of course have to be proven in open court, then he more more than meets the definition for treason.

I realize it's a very weighted term. But it is in the Constitution and if the legal definition applies and the crime is especially egregious, I think it should be applied.

Anonymous said...

I agree with John.