Edward Snowden: Treason or Not?

There is much talk today about whether Edward Snowden, the man who exposed the NSA electronic surveillance program, is guilty of treason.

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.

 

Hillary Clinton: Immoral or Amoral?

During her recent Congressional testimony about the notorious Benghazi Affair Hillary Clinton uttered the now infamous rhetorical question “What difference, at this point, does it make?” Note my emphasis on the word “it.” In the context the question was asked and answered Clinton’s “it” referred at least to the murder of four Americans, and probably the State Department’s antecedent failure to provide adequate security and the White House’s subsequent stonewalling cover-up. 


In other words—according to the former First Lady, United States Senator, presidential aspirant, Secretary of State, and putative 2016 democratic party presidential candidate—it made no difference that the government of which she was then a high-ranking member exposed Americans to high-risk danger, left them defenseless in a hotbed of terrorists, made no effort to rescue them, literally watched them being murdered—and then tried to cover up apparatchik  malfeasance by lying through their teeth to the people of the United States.

“What difference?” indeed.

But beyond what has become obvious about Clinton’s and her colleagues’ betrayal of the deceased Americans and the rest of the government’s malfeasance, the Benghazi Affair reveals something even more sinister.

Over the years, some of Hillary Clinton’s questionable conduct has not involved issues of morality.  She has been a poseur, playing the role of victimized, yet forgiving, wife during the Lewinsky scandal. She has been a hypocrite, castigating George W. Bush for warrantless surveillance but using purloined tapes to her own political advantage. She has been a paranoid, complaining to the world about the alleged “right wing conspiracy.” She has been a conniver, ousting career White House travel office employees in favor of her cronies. She has been a dilettante, presuming to make over America’s health care system.  

While this conduct, and much more like it, has been unseemly and at odds with the dignified and trustworthy image that had been projected by modern-era First Ladies from Bess Truman to Laura Bush, none of Hillary Clinton’s conduct raised serious moral questions.

On the other hand, Clinton has done many other things that have raised serious questions of immorality (immoral defined as “not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community” [Webster’s New World Dictionary of the American Language (13^th ed.)]; in other words knowing, but disregarding, those principles).

She authored a brief reeking with fraud while a staff lawyer for the Watergate Committee. She was a beneficiary of illegal commodities transactions that turned her a large profit.  She fraudulently stung lenders in the Whitewater land scheme. She bought votes and campaign contributions with criminal pardons issued by her husband. She lied about Chinese contributions to her political campaigns. She participated in slandering and intimidating women whom her husband sexually and otherwise abused, and was complicit in covering up his salacious conduct. She blithely desecrated the presidency by selling the Lincoln Bedroom to donors and celebrities. She stole furniture and furnishings from the White House. And much more—including her recent complicity in the murder of four Americans in Benghazi and the attempted cover-up of the entire sordid affair. All immoral conduct.

There’s more, but to elucidate all of it would be to gild the lily. Hillary Clinton’s immoral conduct—rationalize by her adherence to the “Rules for Radicals” promulgated by her mentor Saul Alinsky—has been detailed on the public record for decades, especially since her abortive campaign for the Democratic Party presidential nomination in 2007. 

At that time, I raised the question of whether Clinton’s decades-old questionable character traits and corner-cutting conduct demonstrated that she was merely immoral or, worse: Whether she was amoral—and whether there’s any important difference between the two concepts.

The answer is that there is a difference, a profound one, and with Hillary Clinton’s eye on a 2016 presidential nomination it’s crucially important for the future of the United States of America that the voters of this country understand it.

I begin with the concept of “morality” itself, one which Americans instinctively understand.  Rooted in fundamental notions of “right” and “wrong,” most Americans know (or knew!) that it’s right to pay our bills and protect our loved ones; that it is wrong to defraud creditors and abuse children. It’s immoral to buy votes, lie to investigators, release terrorists for a political quid pro quo, attack the defenseless, steal from the White House—all conduct that Hillary Clinton was a party to—as well as to engage in countless other actions which, by anyone’s definition, must be characterized as immoral.  That this prospective candidate for the presidency of the United States has acted immorally time and time again is clear beyond any legitimate disagreement.

But what about amorality?—defined as “being neither moral nor immoral; specifically: lying outside the sphere to which moral judgments apply; lacking moral sensibility . . . .”  (Merriam-Webster’s Collegiate Dictionary (10^th ed.); emphasis in original.)

A person who is amoral does not accept any moral standard by which her conduct is to be judged by others.  She simply does not care about the concept of morality, about right or wrong, in what she thinks, says, or does.  Morality does not apply to such a person. “What difference, at this point, does it make?” could well be such person’s mantra.

 Thus, the questions arise: Does all of Hillary Clinton’s dubious conduct over the course of decades reflect a simple, garden-variety immorality—knowing but eschewing the right, and deliberately doing the wrong? Or does Alinsky’s acolyte—the leading candidate of the Democrat Party for the presidency of the United States—at root care nothing for morality and deem it to have no application to her? Is Hillary Clinton amoral?

Her record (let alone her character) leaves no doubt about the answer.  Yet Clinton and her supporters ask: “What difference, at this point, does [morality] make?” 

To ask the question is to answer it.

In praise of torture

Several years ago I wrote that “recently we witnessed Chechen rebels taking over a Moscow theater, capturing hundreds of hostages, and threatening to kill them if the intruders’ demands were not met. Let’s assume the same thing happens in the United States, but with al-Qaeda terrorists. Assume further that we capture one of the terrorists who knows the plans of his comrades, but he won’t talk. Should we use torture to force this crucial information out of him?”

Well, Boston has just experienced an analogous situation. Brother 1 (the elder) and Brother 2 (the younger) detonate two IEDs (improvised explosive devices) at the Boston Marathon killing at least three innocent bystanders and maiming scores of others. Brother 1 is killed in a shootout with police. Brother 2 survives. Not initially having been “Mirandized” (“You have the right to remain silent,” etc.) he is to be politely questioned by crack FBI interrogators who cannot lay a finger on him (are you listening Senators McCain and Graham, and your weak-kneed cohort?).

Let’s say, hypothetically, that Brother 2 tells them that there are other bombs stashed in Boston, ticking away, and set to explode in public places beginning Thursday morning. Perhaps Fenway Park, maybe in a subway, at a race track or Prudential Center Mall. Why not all of them? Or elsewhere. Anywhere.

But there’s a problem. Brother 2 won’t provide any details. He just lies in his hospital bed muttering the mantra of “tick tock, tick tock.”

Frustrated—and plenty scared, after all Brother 2 has proved his bombing creds once already, to devastating effect—the interrogators would like to torture the information out of the terrorist.

"Torture"—commonly defined as "the inflicting of severe pain to force information or confession"—comes principally in two varieties: physical (e.g., the "third degree") and psychological (e.g., sleep deprivation). The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy.

But is it? Should it be?

Some of the commentators, in their analysis and discussion of the phenomenon of torture, admit being deeply troubled by how a democracy deals with the question of torture generally, let alone in the extreme example of the so-called "ticking time bomb" situation such as the one I posit here.

Until recently the question was hypothetical. Sadly, in the United States of America it no longer is.

There are variations on the ticking time bomb situation, but the essence is in this plausible, even worse, scenario: A known terrorist in FBI custody, whose information is credible, won’t disclose where in Washington, DC, he has secreted a "weapon of mass destruction" – a nuclear bomb – set to detonate in twenty-four hours. The Bureau is certain that the terrorist will never voluntarily reveal the bomb’s location. Within a day our nation’s capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated, and the United States laid defenseless to unimaginable predation by our enemies.

What to do?

Accepting these facts for the sake of argument, we have only two choices. Do nothing, and suffer the unimaginable consequences, or torture the information out of the terrorist.
There are those among us—nihilists come to mind–who would probably stand by idly and endure an atomic holocaust. But most people, realists, would doubtless opt for torture, albeit reluctantly.

They would be correct. They would be entitled to be free of even a scintilla of moral guilt, because torture – of whatever kind, and no matter how brutal – in defense of legitimate self-preservation is not only not immoral, it is a moral imperative.

Unknown to most Americans, one case in two different courts in the United States—a state appellate court in Florida, and a federal Court of Appeals—have, albeit implicitly, endorsed such a use of physical force, and thus of torture, if necessary to save lives.

Jean Leon kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A ransom was arranged, a trap was sprung, and Leon was arrested.

Fearing that the accomplice would kill Gachelin if Leon didn’t return promptly with the ransom money, the police demanded to know where the victim was being held. Leon wouldn’t talk.

According to the Third District Court of Appeal of the State of Florida, when Leon "refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him [and, allegedly, threatened to kill him] until he revealed where . . . [Gachelin] was being held. The officers went to the designated apartment, rescued . . . [Gachelin] and arrested . . . [the accomplice]."

While this was happening, Leon was taken "downtown," questioned by a different team of detectives, and informed of his Miranda rights. He signed a waiver and confessed to the kidnapping. But before Leon’s trial, he sought to exclude his police station confession, arguing that it was the tainted product of the cops’ literal arm twisting, choking, and threats. (No self-incrimination issue arose from Leon having revealed the victim’s location because that information was not sought to be used against him at his trial).

The trial judge denied Leon’s motion to suppress his confession on the ground that the force and threats used on him at the time of arrest were not the reason for his confession. In other words, the conceded coercion at the time of Leon’s arrest had dissipated by the time of his confession, which the trial judge ruled had been given voluntarily.

Leon appealed. The Florida appeals court affirmed, reaching the same conclusion as the trial judge: Whatever had happened at Leon’s arrest, the coercion had dissipated by the time he’d confessed. Thus, it was proper to use Leon’s confession against him at trial.

That ruling should have been the end of Leon’s first appeal because the only question in the case was the admissibility of Leon’s confession. Yet the appeal court’s opinion went further than the facts of the case required. In language lawyers call dicta—judicial reflections in no way necessary for a decision—the appellate judge added, gratuitously, that "the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life."

Consider the implications. Even though the motive for using force, and the police’s use of it, were irrelevant to the decision, the appellate court’s 2-1 majority saw fit to give its express approval of physical and psychological coercion in this situation, so long as the product of that coercion (the confession) was not used against defendant Leon at his trial.
Lest anyone think that the dicta in this decision was an aberration, we need look only at the unanimous three-judge decision in Leon’s further appeal to the United States Court of Appeals for the Eleventh Circuit.

The facts were not in dispute. Once again, the only issue on appeal was whether the physical and psychological coercion at the time of arrest tainted the confession, or whether the coercion had, by then, sufficiently dissipated to make Leon’s confession voluntary.

First, the federal appeals court dealt with self-incrimination. As to Leon’s arrest statement concerning where his accomplice was holding Gachelin, there was no issue since the prosecution, properly, had never tried to introduce that statement at the trial. Next, whatever coercion had been used, it did not taint Leon’s later confession because, according to the court, "the totality of the circumstances . . . clearly confirms . . . that the second statement was voluntary." Therefore, that statement was both voluntary and admissible.

The federal appeal court’s ruling concerning the voluntariness of Leon’s confession completely disposed of the case. But, as with the earlier appeal, this court took the unnecessary step of including dicta to the effect that the use of coercion at Leon’s arrest was "motivated by the immediate necessity of finding the victim and saving his life," and that "[t]his was a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death."

Since the appellate courts, both state and federal, went out of their way to express their approval of coercion in a life-threatening situation, their dicta is noteworthy because it signals their acceptance of coercion in principle – a legitimization, as it were.

 If, without objection from a state and a federal appeals court (indeed, with their apparent approval), the Florida police could employ a relatively benign form of coercion to save the life of a kidnap victim, it follows that the same rationale would support actual torture (physical and/or psychological) in a ticking time bomb situation.

Once that threshold is crossed—once the principle is accepted that torture legitimately can be employed to save lives—all that remains is the application of that principle to concrete cases. While that application could be difficult—requiring some showing of probable cause, judicial oversight, and the like—the need to create such important procedural safeguards does not negate the argument that, in this country, where killers are routinely put to death for the commission of a single murder, it is neither immoral nor illegal in principle to employ non-lethal torture—waterboarding, for example—in the name of saving thousands of innocent American lives. 

Indeed, failure to do so is immoral.

Hanoi Jane lies again

In our book “Aid and Comfort”: Jane Fonda in North Vietnam Erika Holzer and I proved that her wartime trip to, and radio broadcasts from, North Vietnam was provable constitutional and statutory treason of which she could have been convicted by a jury.

Then came her autobiography, in which she defended her trip and claimed that over the years since she had apologized.

In response, for Front Page Magazine Erika and I wrote a lengthy deconstruction of everything she said in her book about her junket to Communist Vietnam. Entitled “Guilty as Charged.”

On April 3, 2013 Newsmax reported that Fonda says that “I made one [!!] unforgivable mistake when I was in North Vietnam, and I will go to my grave with this.” She claims that she has “apologized repeatedly, both privately and repeatedly.”

(Although this is a PC blog, I can’t restrain myself from saying “Bull Shit”).

As to her treason, see “Aid and Comfort”: Jane Fonda in North Vietnam. As to the purported repeated apologies, see “Guilty as Charged.”

Women in ground combat

The late military historian Lt. Col. Roy E. Appleman wrote extensively about the Korean War. His book Disaster in Korea: The Chinese Confront MacArthur describes in heart-wrenching detail the United States Army's 2d Infantry Division's withdrawal south from a place called Kunu-ri. Here is one vignette, quoting an American Lt. Colonel who was at that moment under intense Chinese small arms and mortar fire:

"For the next 500 yards the road was temporarily impassable because of the numerous burning vehicles and the pile-up of dead men, coupled with the rush of the wounded from the ditches, struggling to get aboard anything that rolled. When we checked to make a turnout, away from a blazing wreck, either there would be bodies in our way, or we would be almost borne down by wounded men who literally threw themselves upon us. At one point, I got out of the quarter-ton [jeep] to remove a body from the road. Then I saw the man was still living. He was a wounded ROK [Republic of Korea] soldier. I squeezed him into our trailer. But as I put him aboard, other wounded men piled on the trailer in such numbers that the jeep couldn't pull ahead. It was necessary to beat them off. We got underway. Then I heard a scream behind me and stopped. The press of bodies had pushed a wounded Turk between the jeep and the trailer and we were about to tear him apart. Again I had to get out and wrestle off a dozen wounded who were trying to board us. There wasn't any space for even one of them and I couldn't give up my place because I had to keep my battalion moving." (My emphasis.)

Every war has uncountable stories like this: Large caliber machine guns too heavy to redeploy; hand-to-hand combat; bayonet charges; wounded who need to be carried to safety. 

And those stories give rise to questions so obvious that I won't waste your time raising them here. Except to ask a rhetorical one: How many of the radical feminists, and their female supporters, are going to volunteer for ground combat -- or are they going to sit comfortably on the sidelines cheering on their sisters who may well die in the name of an absurd notion of "equality," and take male warriors down with them?

The Real Meaning of "You didn't build that."

Obama spoke those four words last week in the context of a wider statement that can only be spun, but not misunderstood.

Those now infamous words amounted to his explicit confession of the ethical principle at the core of Obama’s belief system: collectivism.

As good a definition of collectivism one can find is Ayn Rand’s: “Collectivism means the subjugation of the individual to a group -- whether to a race, class or state does not matter.  Collectivism holds that man must be chained to collective action and collective thought for the sake of what is called ‘the common good’.”

OK, if “you didn’t build that,” someone else did -- and Obama told us who it was: other people, whether configured as “the government,” or “society.”  Anyone other than you.  The collective.

This means that if you didn’t build "that" and the collective did . . .  well, you have no inalienable right to “that.”

According to the President of the United States -- the freest, most capitalist, private property protective nation ever to exist --  individuals create nothing by themselves, it’s the collective that’s responsible, and so that’s where ownership of the "that" properly should be vested.

What's the "that"?

Private property.  Your private property.

Obama’s naked collectivist attack on individual enterprise -- "You didn't build 'that'" -- was, at bottom, an attack on the nature, source, and ownership of private property.

Someone, please explain that to Mitt Romney, as well as every Republican candidate running for election today.

John Roberts and a Vietnamese Village

No one need read the entrails of a goat to understand the decision five Supreme Court justices rendered last Thursday regarding the constitutionality of the so-called Obamacare individual mandate.

With the dust settling on that decision—the mandate is constitutional not under the Commerce Clause, but as a newly-invented “tax” within Congress’s power to impose—focus is shifting to Chief Justice John Roberts’s vote that gave the four Court liberals and President Obama the constitutional victory.

Serious people are asking why Roberts wrote so patently an indefensible opinion, distorting reality to find a tax when there is no tax.

There are some who believe that Roberts’s whole-cloth tax rationale masked the Chief Justice’s clever Machiavellian plan to prevent the Commerce Clause’s further engorgement, tilt the election toward Mitt Romney, and otherwise in some not apparent manner do damage to the Court’s enemies.

Other commentators, preeminently Charles Krauthammer, argue that Roberts—who literally sat still when Obama insulted the Court and some of its members in person in front of Congress, the American people, and the world—is still hearing echoes of Bush v. Gore.  They believe, with some justification, that the Chief Justice feared his Court would again be held in disrepute if a 5-4 conservative bloc ruled Obamacare unconstitutional.  Indeed, in the last few weeks Obama himself, some members of his administration, a few Congressmen and Senator Patrick Leahy unconscionably told the Supreme Court it better not hold the mandate, let alone the rest of Obamacare, unconstitutional.

If this is why Roberts—otherwise a card-carrying judicial conservative, and staunch supporter of judicial restraint—caved in and ruled Obamacare constitutional, he made a serious miscalculation.  His tortured majority opinion has not only sullied his own reputation.  It has confirmed the view of many that the Supreme Court is just another pragmatic political institution—to be distrusted, even scorned.

One is reminded of the perhaps apocryphal Vietnam War comment, attributed to an unnamed American officer, to the effect that “to save the village, it had to be destroyed.”