As glib, and understandable, as those statements are, only a jury can decide whether he--or, for that matter, Jane Fonda-- is guilty of treason. The best, and fastest, explanation I can give of this is found in an article I wrote several years ago. Bracketed material has been added today.
THE BAGHDAD BOYS: DON’T CALL THEM TRAITORS
By
now, few people are unaware that Representatives Jim McDermott
(D-Wash), Mike Thompson (D-Cal), and David Bonior (D-Mich) recently made
a pilgrimage to Saddam Hussein’s Iraq. There, they toured, posed for
pictures, and schmoozed with Iraqi officials. And while in Iraq,
McDermott made critical comments about the United States and said he’d
trust Saddam Hussein before he’d trust his own president, George W.
Bush.
Understandably,
a firestorm erupted – especially on the political right. Predictably,
there have been calls to charge the three Baghdad Boys with treason –
analogizing their conduct to Jane Fonda’s during the Vietnam war.
However, for the very reasons my co-author [Erika Holzer] and I concluded in our . . . "Aid and Comfort": Jane Fonda in North Vietnam (McFarland & Co.) that Fonda was indictable and convictable for treason, the Baghdad Boys are not.
There
are three crimes expressly mentioned in the Constitution, only one of
which is actually defined. Article I, Section 8, gives Congress power to
punish counterfeiting, and to define and punish piracy; neither is
actually defined. However, Article III, Section 3, provides that:
"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."
As explained in "Aid and Comfort"(www.amazon.com),
the Supreme Court of the United States, has interpreted the treason
section to require four elements for indictment and conviction: (1) an
intent to betray the United States, (2) an overt act, (3) proved by two
witnesses, (4) providing aid and comfort."
In
Jane Fonda’s case, she traveled to North Vietnam during hostilities,
made broadcasts (tapes of which were relentlessly played to our POWs),
held press conferences, provided photo ops for the Communists, attacked
the United States and its leaders, exploited American prisoners of war,
fraternized with North Vietnamese military and civilian leaders — and
was thanked for her efforts by grateful, top level Communist leaders.
This is why "Aid and Comfort" concludes that, given the law of
treason and given Fonda’s conduct, there was more than sufficient
evidence to support an indictment and a conviction for treason.
It
is understandable that people are equating what the three Congressmen
did in Iraq with what Jane Fonda did in North Vietnam. The parallels are
there – up to a point. Fonda traveled to North Vietnam at a time when
the United States was actively engaged in hostilities with that country:
a large-scale air, ground, and sea conflict. McDermott, Thompson, and
Bonior traveled to Iraq at a time when the United States was actively
engaged in hostilities with Iraq: an air campaign in the "no-fly" zones.
In both situations, one finds the requisite overt acts, no dearth of
reliable witnesses, and unequivocal aid and comfort to our enemies in
the form of propaganda.
But
one essential element of the crime of treason – indisputably present in
the Fonda situation, but and lacking in the case of the three
Congressmen – is intent.
Only
in rare cases can criminal intent be proved through direct evidence
(for example, from an admission by the defendant). Because intent is a
state of mind, almost always it must be proved indirectly. In the crime
of treason, the Supreme Court of the United States has consistently
ruled that the requisite element of intent can be inferred from
a defendant’s overt acts. In Fonda’s case, a jury could have concluded
from all that she said and did that her intent was to betray (i.e.,
harm) the United States.
Not
so with the Baghdad Boys. Taken at face value, their self-serving
statements of how they were only trying to help, rather than complicate,
the desperate situation the United States now faces, suggests a lack of
intent to betray America. They may be stupid, grandstanders, useful
idiots, publicity hounds. They may even be part of the phenomenon that’s
the subject of our next book (Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service [now in its second edition, www.amazon,com])
because at least two of them (McDermott and Bonior) claimed they had
fought in Vietnam, [so as to sound like patriots], when the truth is that neither one ever left the
United States [during that war].
But, legally, they are not traitors.
Our
government could not make a treason case stick. As contemptible as
their conduct and statements were, the Baghdad Boys are protected by the
constitutional guarantee of free speech.
Which
is not to imply that those who condemn them as un-American and unworthy
of public office are without remedy. Let the last word on these three
Congressmen be – not from federal prosecutors – but from their
constituents.
Which brings me back to Snowden. As it was with Tokyo Rose and Axis Sally during World War II, Fonda in Vietnam, and now Snowden hiding out in Hong Kong, the touchstone of a successful treason prosecution--under either the Constitution or federal statute--is "intent." A jury found that the two women had it, could have found that Fonda did, and would not have been allowed by a judge to find the Baghdad Boys had the intent to "adhere" to Saddam and give him "aid and comfort."
Based on Snowden's own admissible statements so far, however, a jury could certainly find each one of the treason elements, including intent. Meaning that he, like Hanoi Jane Fonda, is both indictable and convictable of treason against the United States of America.
We'll see whether Obama has the stomach to do what's right.
