Treason: Who Decides?

The Military Commissions Act of 2006 subverts who we are as Americans. Beware.

  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. —U.S. Constitution, Article III, Section 3 .


There is not only a battle against terrorism, but there is a battle here to protect this country's rule of law. —Military lawyer Charles Swift, forced to retire by the Pentagon after defeating Bush in the Supreme Court in Hamdan v. Rumsfeld, a decision now overturned by Congress in the Military Commissions Act of 2006.

Lieutenant Commander Charles Swift: "Any of us can be 'unlawful enemy combatants.' "
photo: Alan Diaz/AP Photo
Lieutenant Commander Charles Swift: "Any of us can be 'unlawful enemy combatants.' "


George W. Bush likes to call himself "the Decider," and on signing the Military Commissions Act of 2006—presented him by the Republican-controlled Congress—he has far more power to reinterpret the rule of law, including the definition of treason and the Constitution, than any president in American history.

For one of many examples, there was this exchange the day before the signing between a reporter and presidential press secretary Tony Snow:

Reporter: "[This law] makes him [Bush] the final arbiter on torture."

Presidential spokesman Snow: "Right."

Bush will not only decide what torture is under the "coercive interrogations" allowed under the new law—including by the CIA in its prisons—but will also decide what evidence is permitted before the military commissions at Guantánamo.

Bush also can have "unlawful enemy combatants"—whom he designates as such—picked up anywhere, including on the streets of the United States, and held indefinitely. This applies to aliens, including millions of lawful immigrants in the United States.

As he already has—with Yaser Hamdi and Jose Padilla—Bush can also lock up American citizens as "enemy combatants" for "purposely and materially supporting" the enemy. As citizens, they will be entitled to access to our courts (under procedures alien to the Bill of Rights). But all noncitizen "enemy combatants" will be forbidden to have lawyers file habeas corpus petitions in our courts on whether they're being held lawfully.

Bush is the first president since Abraham Lincoln to suspend the "Great Writ," habeas corpus. (In 1866, the Supreme Court ruled Lincoln had no constitutional right to do that; but this is now the John Roberts Court with Antonin Scalia, Clarence Thomas, Samuel Alito, and a problematic Anthony Kennedy—plus any further nominee Bush will be able to place there during the rest of his term.)

Recently, Lieutenant Commander Charles Swift—responsible, along with a similarly first-class civilian lawyer, professor Neal Katyal of Georgetown University, for the June Hamdan decision that has now failed Congress's tests of patriotism—told me: "The consequences of the Military Commissions Act are huge. Given these powers, this administration will use them"—and set a precedent for future presidents unless the Roberts Supreme Court intervenes, and we won't know how it decides for a year or more. "Of course," Charles Swift also told me, "terrorism is a terrible danger to us, but as this new law shows, a greater danger is whether the terrorists will change who we are."

A possible next president, John McCain, used to say that we can't allow terrorists to change who we are; but he voted for the Military Commissions Act of 2006, and said on October 18, "I can assure you I would never al low anything I'd consider torture." But as Tony Snow made clear, that's for the president to decide; McCain knew that when he voted for the Military Commissions Act.

Because the president will set the rules of evidence for future trials—including the use of hearsay evidence and the products of "coerced interrogations"—those trials, Swift told me, "will not look like American trials." In terms of our rule of law, he added, "they'll take place in the dark."

Since part of the language of the Military Commissions Act mirrors the definition of treason in the Constitution, could this president charge with treason noncitizens and American citizens who have not joined terrorists (alleged or actual) in committing or planning acts of war against the United States?

As the late Supreme Court justice Robert Jackson said of the language in the Constitution defining treason, those provisions are "packed with controversy and difficulty"—phrases like "giving aid and comfort."

Under the Military Commissions Act, can George W. Bush decide to bring a charge of treason against those he prejudges as "unlawful enemy combatants"? A New York Sun lead editorial from October 13 begins with U.S. law on treason, echoing the Constitution's definition. The first line of this law makes it apply to citizens:

"Whoever owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but no less than $10,000, and shall be incapable of holding any office under the United States." (18 U.S.C. 2381)

The Sun's editorial cautions that "treason is very different from dissent" and—commendably—points out that the Sun has "resisted the use of the word traitor to describe critics of the administration or to describe those who leak confidential documents to the newspapers, or the newspapers that print them."

But George W. Bush, Dick Cheney, Alberto Gonzales, and Robert Mueller are not editors of the Sun, and have already shown their devotion to the authority of "the unitary executive" (embodied by the president) to override such American laws as the War Crimes Act and its punishments for CIA violations thereof, the Constitution itself, and international treaties.

In a coming column I will carefully, avoiding paranoia and reverse agitprop, examine—in the case of another 9-11—the prospects for treason trials of Americans under the presumptions of guilt embedded in the new law for "supporters" of terrorists. Included will be the history, since 2002, of preparations for the internment camps here—as reported on August 8, 2002, by the Wall Street Journal, and not denied, at the time or since by the Bush Justice Department.

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