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. (Constitution of the United States of America, Art. III, Sec. 3, Par. 1.)
General Mark A. Milley’s phone calls
Although the event occurred over a year ago, there still exists on the Internet a clamor that Chairman of the Joint Chiefs of Staff Mark A. Milley committed treason and should be held accountable or it.
Are they correct?
The facts are straightforward, and uncontested.
In two relatively secret phone calls, the American general assured his Chinese counterpart—People’s Liberation Army General Li Zuocheng—that the United States was not planning to attack his country.
Coincidentally, that call took place a mere four days before the 2020 presidential election, November 3, 2020 . The second call, on January 8, 2021.
General Li [the four-star general, Chairman of the Joint Chiefs of Staff, confided to his counterpart in the People’s Liberation Army], I want to assure you that the American government is stable and everything is going to be okay. We are not going to attack or conduct any kinetic operations against you.
As if that wasn’t enough, in effect he reminded General Li that they were buddies—“you and I have known each other for now five years”—and also said “If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise.”
As if that wasn’t more than enough, Milley called the admiral in charge of overseeing the United States Indo-Pacific Command, and “recommended” postponing scheduled military exercises. The former complied.
As if that wasn’t more than more than enough, Milley—whose statutory job was limited to presidential advisor, without a shred of operational power—he ordered a meeting of military officers to review procedures for launching nuclear weapons. As a nod to the Constitution’s Article II and a host of statutes and regulations, Milley acknowledged that only the President of the United States could push the atomic button. However, he told the assembled officers that he had to be part of the process.
It has been reported that he ordered them to confirm they understood and had taken the equivalent of an “oath.”
What, then, is the factual essence of what Milley had done?
He exceeded his legal authority in several ways, promised an enemy to potentially disclose one of his country’s closest held secrets, assumed control of equal officers over whom he had no statutory control, ordered those officers to disobey their commander-in-chief and made a mockery of the chain of command in which he had no place.[1]
(The admiral who cancelled the military exercises and the oath-takers also have much to answer for. It is likely that the statute of limitations will not have expired before a new president takes office in January 2025.)
The law of treason
Not until 1945 did the Supreme Court of the United States review a treason conviction. Cramer v. United States was the first. Seven other cases followed, two in the Supreme Court and five in United States Courts of Appeal: Haupt v. United States, Chandler v. United States, Gillars v. United States, Best v. United States, Burgman v. United States, D’Aquino v. United States, Kawakita v. United States.
Cumulatively, in these eight decisions arising from World War II, the Supreme Court of the United States established that for a prosecutor to get an "aid and comfort" treason indictment to a jury she must prove four elements beyond a reasonable doubt: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act actually providing aid and comfort to the enemy.
The first three elements of the crime are not difficult because they are objective. Hiding money belonging to a saboteur, surveilling a defense plant, broadcasting enemy propaganda, and torturing American prisoners of war are all manifestly overt acts. Two witness proof—for example, from Tomoya Kawakita’s victims in Japan and Jane Fonda’s American POWs in North Vietnam—is also objective. As is the intent to betray, in cases where rogue CIA and FBI agents spied for the Soviet Union.
The final element of a treason case is that the defendant’s conduct actually provided "aid and comfort" to an enemy of the United States. In Cramer, the Supreme Court observed that "[t]he very minimum function that an overt act must perform in a treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy."
The same was true in Chandler where the First Circuit Court of Appeals had to decide whether the prosecution adduced enough evidence from which the jury could reasonably have concluded that Chandler’s overt act(s) had provided the constitutionally requisite "aid and comfort" to the Nazi regime. Chandler claimed that not one of the alleged overt acts—by themselves—provided aid and comfort to the Nazi’s goals.
The Court of Appeals disagreed:
Possibly the overt acts, viewed in rigid isolation and apart from their setting, would not indicate that they afforded aid and comfort to the enemy. But viewed in their setting, which is set forth above . . . they certainly take on incriminating significance.
They then appear as typical routine activities of Chandler in fulfillment of the purpose of his continuous employment as radio commentator for the German Propaganda Ministry over a period of three years.
The enemy’s mission which Chandler participated in forwarding—the objective of the German Short Wave radio program beamed to the United States—also appears as part of the setting. It was an obvious advantage to the enemy in the execution of that program to have the open assistance of a cultivated and widely traveled American citizen like Chandler.
That the enemy deemed Chandler’s services to be of aid and comfort is attested by the high salary which they paid him. These services consisted not merely of the culminating act of making a recording, but also of the necessary preliminary acts directed to that end.
They were all part and parcel of the totality of aid and comfort given by the course of conduct as a whole. Attending a conference of commentators, at the summons of the Chief of the U.S.A. Zone, in order that directives as to the current propaganda line might be relayed and discussed and individual assignments made, could reasonably be found to have been of aid and comfort to the enemy.
The proof under overt acts 4 and 5 established Chandler’s participation in two such conferences. And certainly the making of recordings by Chandler, on the occasions proved under overt acts 17 and 18, warranted findings that Chandler gave aid and comfort to the enemy.
The evidence under overt act 17 showed two recordings by Chandler on the same occasion: one a recording for his regular Paul Revere broadcasts, and another a recording of a special mixed program of poetry and music. The evidence under overt act 18 showed the making of a dialogue recording by Chandler and one Sittler, who was employed as a translator in the U.S.A. Zone.
At this point it’s useful to repeat the constitutional definition of 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." (My emphases.)
The "levying war" prong of the treason crime has been italicized for two reasons. First, to emphasize that, until now, the discussion has been limited to the "adhering" prong. Second, because the "levying war" prong is just as much a part of the crime of treason as the "aid and comfort" prong—and because it is much misunderstood.
It is popularly, and erroneously, believed that a "levying war" charge requires that the United States actually be at war. For example, when people considered Taliban John Walker-Lindh’s activities with the Taliban and al-Qaeda in Afghanistan— as a member of armed forces with which the United States was not formally at war—the question was often asked as to whether one can be convicted of treason absent a formal declaration of war.
The answer is yes.
Historically, neither the text of the A.D. 1350 English Statute of Edward III—the genesis of our Constitutional law of treason—nor any of the commentary interpreting that venerable law, nor for that matter the statute’s historical application, suggest that a formally declared war is a necessary element of the crime of treason. Indeed, the statute’s historical preoccupation was with protection of the monarch from domestic, as well as foreign, enemies, and thus the history indicates that a declared state of war (however that would have defined in the Fourteenth Century) was not a necessary element.
Additionally, the text of Article III, Section 3, paragraph 1, of the Constitution of the United States—in providing that "[T]reason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort"—clearly confines the "war" element to the "levying" prong of the crime, and makes that element inapplicable to the "or adhering" prong. This interpretation is borne out by two early cases.
The first was the notorious episode involving Aaron Burr, one of the most interesting characters of the post-colonial period. Thomas Jefferson and Burr were tied for election to the presidency in December 1801. The House of Representatives elected Jefferson, and Burr became Vice President. He was not a happy Vice President. Though a Republican, Burr not only later made common cause with his party’s opponents, the Federalists, but he conspired against the United States government itself. The "Burr Conspiracy," born at the end of his vice presidency, consisted of a bold plan to "’liberate’ Mexico from Spain, and at the same time make Louisiana an independent republic, which Mississippi Territory would surely decide to join."
During preparation of the conspiracy, a confederate betrayed Burr to President Jefferson. Even though the United States was not at war with any other nation at that time, Burr was charged with the "levying war" prong of the treason crime.
Thus, if in time of non-war a person, like Burr, can be charged with the "levying war" prong of the treason crime, one can be surely charged with the "adhering" prong during cold war and hostilities. Indeed, no one can reasonably doubt— as the Holzers' "Aid and Comfort": Jane Fonda in North Vietnam proves—that Hanoi Jane could have been indicted for, and convicted of, treason for her conduct in North Vietnam even though we were not formally at war with the Asian Communists.
The second case, in the Supreme Court of the United States, occurred in 1863, and arose out of the Civil War:
On the fifteenth day of March, 1863, the schooner J. M. Chapman was seized in the harbor of San Francisco, by the United States revenue officers, while sailing, or about to sail, on a cruise in the service of the Confederate States, against the United States; and the leaders . . . [including Greathouse] were indicted . . . for engaging in, and giving aid and comfort, to the then existing rebellion against the government of the United States.
Since Greathouse, like Burr, appeared to be a "levying war" case, the actual legal question before the Court was not whether in an "adhering" case a declared war was a necessary prerequisite for indictment and conviction. However, in language appearing in Justice Field’s discussion of the concept "enemies," the Greathouse Court did have something to say about the concept of "war." According to Field, "The term ‘enemies,’ as used in the second clause [of the Constitutional treason provision], according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us."
Justice Field’s words were written only seventy-six years after adoption of the Constitution. He knew his constitutional history, and he chose his words carefully. If, in Justice Field’s discussion of the status of a "foreign power" in relation to the United States, he meant to refer to "war," he certainly would have done so. Instead, the Supreme Court justice chose the word "hostility," denoting a very different relationship: one not of war. Accordingly, based on the background of English, colonial, constitutional, and post-constitutional decisional history, the absence of a formal declaration of war is no impediment to a charge of treason.
That being so, it is important to understand something else very important about the crime of treason.
First, because treason is the only crime defined in the Constitution, conduct constituting that crime should be taken seriously—and other than by prosecuting, there is no other way to do that.
Second, it is very much the purpose and function of the law, in certain circumstances, to make moral statements, as do many of our statutes and common law doctrines. Criminal laws punishing everything from homicide to shoplifting come to mind, as do civil laws providing recompense for everything from breached contracts to intentional infliction of emotional distress. Indeed, underlying the award of punitive damages is the punishment of civil wrongdoers—certainly a moral statement.
Third, an important aspect of prosecuting (and, even better, convicting) someone, say Jane Fonda, for treason, is to provide vindication for those who have suffered from the treasonous acts.
Although the purpose of the criminal law is often thought to vindicate "society," in reality it is nothing more than lots of individuals.
"Society" did not have its morale weakened by the broadcasts of Axis Sally and Tokyo Rose. "Society" did not endure the torture of the North Vietnam Communists. Individuals did—and it is they who must be vindicated. Indeed, even today countless veterans feel that their government let them down by never prosecuting Fonda and her cohorts who gave aid and comfort to the enemy during the Vietnam War. They suffered, and she walked—and prospered! And that is not right.
General Mark A. Milley, revisited
As I wrote above, the Chairman of the Joint Chiefs of Staff “exceeded his legal authority in several ways, promised an enemy to potentially disclose one of his country’s closest held secrets, assumed control of equal officers over whom he had no statutory control, ordered those officers to disobey their commander-in-chief and made a mockery of the chain of command in which he had no place.”
So, the questions are whether he committed an overt act(s), whether there were two witnesses, whether those acts manifested an intent to betray the United States, and whether the act(s) provided aid and comfort to our Chinese enemy.
There is only one body that can answer these questions: A military court martial.
“Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason.”
America and those who served it can no longer afford not to call it treason!
[1] (The admiral who cancelled the military exercises and the oath-takers also have much to answer for. It is likely that the statute of limitations will not have expired before a new president takes office in January 2025.)
