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One-Click Treason
By Tom W. Bell
07/24/2003
Accusations of treason fly when a nation goes to war. Sometimes, those claims stick. After World War II, the U.S. punished several of its citizens for having served as paid Axis propagandists. Recent terrorist attacks on the U.S. have triggered new cries of "Treason!" Could successful prosecutions follow?
As the Constitution defines it, treason includes "adhering to" enemies of the U.S. and "giving them Aid and Comfort." Courts have already told us that paid propagandists meet the test. An American serving as a paid propagandist of the al-Qaida network would thus run a high risk of punishment for treason. The same would likely hold true of anyone who, owing allegiance to the U.S. , spoke on behalf of and in the pay of an anti-U.S. terrorist organization.
The War on Terrorists will probably not generate any treason prosecutions of paid propagandists, however. Contemporary terrorist networks favor less formal -- we might say "packet-switched" -- operations. Terrorist enemies of the U.S. thus tend to distribute their propaganda via volunteers from the press, in the street, or on the internet. Could such volunteer propagandists suffer punishment for treason?
Here, the law of treason hides a treacherous hole. Courts have not said whether volunteer propagandists for enemies of the U.S. commit treason against it. The volume of volunteer pro-terrorist propaganda alone makes that legal uncertainty worrisome. The growing ease of adding to that flood of speech makes the legal gap dangerous.
Advances in telecommunications have made it astonishingly easy to publish unpaid, volunteer, freelance propaganda. Because she relied on short-wave radio signals sent from powerful transmitters overseas, Axis Sally needed Nazi help to broadcast to the U.S. Today, in contrast, a domestic "al-Qaida Al" could, with a single click on his weblog interface, bombard the world with anti-U.S. polemic.
Does that mean that every domestic blogger who criticizes U.S. foreign policy thereby commits treason? Of course not. The Constitution requires treasonous speakers to "adhere to" U.S. enemies. Most critics of their country want to help it. As the Supreme Court explained in Cramer v. United States , a treasonous speaker must "intellectually or emotionally favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest . . .." A domestic blogger like al-Qaida Al might easily qualify on that count.
The Constitution also requires that a treasonous act give "Aid and Comfort" to enemies of the U.S. Can mere speech do that? Here, again, Cramer v. U.S. offers guidance. The Supreme Court included "making a speech critical of the government or opposing its measures" among the acts that could aid and comfort an enemy. Again, al-Qaida Al might do that; bloggers already do.
Suppose, then, that our imagined blogger owes allegiance to the U.S. , sympathizes with al-Qaida, harbors convictions disloyal to the U.S. , and uses his blog to express those views. Does he thereby commit treason? Although language from Cramer v. U.S. suggests that he does, that case speaks only to the prosecution of a paid propagandist. It thus does not control the hypothetical case of U.S. v. al-Qaida Al. And, as other courts have observed, al-Qaida Al has a free speech right to express his opinion.
Treason law has not yet bridged the gap between paid and independent propagandists. If al-Qaida Al blogs as a paid agent of the al-Qaida conspiracy, he probably commits treason. If he speaks in complete independence of al-Qaida direction, he almost certainly enjoys immunity from prosecution. Between those solid edges fall a number of cases, including directed but unpaid propaganda, undirected but coordinated propaganda, and sympathetically republished propaganda.
How should we decide whether those types of propaganda qualify as "treasonous speech" or "free speech"? One rule leaps to the fore: Require evidence of a binding obligation between a supposed traitor and a U.S. enemy. Their obligation would not have to be in writing, involve money, or make the accused an agent. At the least, though, al-Qaida Al's prosecutors would have to show that he had promised aid and comfort to a U.S. enemy.
Free speech rights would win greater protection if prosecutors also had to show that defendant Al had gained something in the exchange. It would not have to be money; a promise of almost anything would suffice as consideration for the deal. Perhaps as little as Osama bin Laden's (allegedly) personal "thank you" would do, or a hypertext link on the (alleged) al-Qaida homepage. It would not do, though, to prove only that al-Qaida Al had emailed a promise of help to reliance@al-qaida.net . Prosecutors would have to show that Al got a reply and reached a deal.
Courts may soon face the chasm-splitting treason law. They will then have to walk the legal tightrope between paid and independent propaganda, balancing the power to prosecute treason against the right to speak freely. To give that distinction a solid footing, to protect our liberties from a terrible fall, courts should follow contract law.
Tom Bell is a professor at Chapman University School of Law and adjunct scholar at the Cato Institute.
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R. A. Hettinga