"Giving aid and comfort to the enemy" has become one of the most
popular accusations leveled against those who publicly criticize
Bush's decision to invade Iraq, as well as his handling of all that
has transpired in the wake of the invasion. Since the US Code states
that giving aid and comfort to the enemy constitutes a treasonous act,
why has the Justice Department not indicted any of these critics?

"Title 18, Part I, Chapter 115, § 2381. Treason

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 not less than $10,000; and shall be incapable of
holding any office under the United States."

The Code seems clear, though is silent on what kinds of behavior would
rise to an indictable act of treason.

It's interesting to note, too, that the punishment for treason ranges
all the way from five years imprisonment and a $10,000 fine to death,
which implies an equally wide range of heinousness as to the act
itself.

Three examples of this range come to mind:

1) Jane Fonda's anti-Vietnam war activites, especially her trip to Hanoi.
2) John Kerry's anti-war behavior on returning from his tour in Vietnam.
3) The public utterances of dissenters in the current Iraq war.

Does each of these examples rise to the level of treason under the US
Code? If so, why no indictments? If not, why not? Is it because the
government cannot find enough specificity in the alleged linkage
between the acts and the result, namely, giving aid and comfort to the
enemy?

Perhaps critics who charge dissenters with treasonous behavior simply
mean to say that, while such behavior doesn't rise to an indictable
offence, their effects are tantamount to treason, if only because they
signal to the enemy a wavering of our national will?

In my view, charging dissenters with giving aid and comfort to the
enemy is but an expression of outrage and one not intended to form the
basis for a charge under the treason statute. What say you?

---

Clarification of Question by nautico-ga on 12 Oct 2004 09:07 PDT

There is perhaps a very simple answer to my question (Occam's Razor!),
and it has to do with the practice of using the same word both
generically and legalistically. The word "treasonous" is much like
"insane" in that regard. "Clinically insane" (i.e., what psychiatrists
consider insane/psychotic behavior) is held to less stringent criteria
than "legally insane" (i.e., what legislators and the courts consider
such behavior). That distinction reflects society's ambivalence over
the acceptability of the medical profession's neutral attitude toward
insanity and a desire to hold people accountable for bad acts, however
"insane" they seem to be. One could conclude, then, that calling
someone a traitor represents, as I wrote earlier, nothing more than an
expression of outrage by those who realize that what they regard as
abuses of free speech do not actually rise to indictable offenses.

---

Clarification of Question by nautico-ga on 12 Oct 2004 09:48 PDT

Tutuzdad: make that your Answer.

---

Clarification of Question by nautico-ga on 12 Oct 2004 10:10 PDT

One final comment. Those who accuse dissenters of giving aid and
comfort to the enemy by the very acts of their public dissent choose
not to distinguish such verbally treasonous behavior from the "hard
stuff," that of "adhering to the enemy" under the US Code, or what's
been called here as "importing" aid and comfort to the enemy. They
don't do so, because they believe it would dilute their outrage.

Dear nautico:

Since you are agrreable to my research as an answer I am reposting it
here for you in order to officially close your question:

=================================

"AID AND COMFORT. The constitution of the United States, art. 8, s. 3,
declares, that adhering to the enemies of the United States, giving
them aid and comfort, shall be treason. These words, as they are to be
understood in the constitution, have not received a full judicial
construction. They import, however, help, support, assistance,
countenance, encouragement. The word aid, which occurs in the Stat.
West. 1, c. 14, is explained by Lord Coke (2 just. 182) as
comprehending all persons counselling, abetting, plotting, assenting,
consenting, and encouraging to do the act, (and he adds, what is not
applicable to the Crime to treason,) who are not present when the act
is done, See, also, 1 Burn's Justice, 5, 6; 4 Bl. Com. 37, 38."

FREE DICTIONARY.COM
'Legal Dictionary'
http://legal-dictionary.thefreedictionary.com/Aid%20and%20comfort

...This, of course, is the defining statement:

"They [violators] IMPORT, however {by whatever means], help, support,
assistance, countenance, [and] encouragement [to the enemy]."

Clearly one cannot be considered or found guilty of AIDING unless such
aid is imported to the enemy. "THIS" is where the line was crossed in
your example number 1 as opposed to examples 2 and 3 where the
dissention was merely verbalized.

I hope you find that my research exceeds your expectations. I welcome
your rating and your final comments and I look forward to working with
you again in the near future. Thank you for bringing your question to
us.

Regards;
tutuzdad-ga

SEARCH TERMS:


LEGAL DEFINITION

DEFINE

"AID AND COMFORT"

Many thanks. I think the best way of knowing whether "giving aid and
comfort to the enemy" has actually occurred is whether a US Attorney
thinks he or she has enough direct evidence to bring a charge of
treason.

It's one thing to speak out against a conflict (as in examples 2 and
3). It's another thing to go fraternize and cavort with the enemy and
publicly express your support for their cause and to denounce your own
country on their soil in the process. Examples 2 and 3 are clearly
protected under the right to free speech and they do nothing directly
to benefit the cause of our adversaries. Public and private dissenters
are not labeled criminals in our country. Example 1 however, is a
differnet thing entirely and I suspect that if Jane Fonda had not been
Jane Fonda she would have been prosecuted upon her return - and
rightfully so under that statute in my opinion. It did not occur
however (I suspect) because US support of the war was in a negative
tailspin (especially where the younger generation who identified with
Fonda were concerned) and to have prosecuted this public figure would
have been martyrdom and the country might have been irreprairably
divided during a time when cohesion (or at the very least, public
patience) was essential.

Regards;
tutuzdad-ga

Tutuzdad:

I concur with your assessment as to why Fonda wasn't prosecuted,
though I tend to think that even if a lesser known figure had done
what she did, that person wouldn't have prosecuted either and for the
other reason you cite, that "US support for the war was in a negative
tailspin." Still, the question remains at what point under First
Amendment protection of free speech does such speech cross over into
actual "aid and comfort to the enemy" under the treason statute? Can
it ever cross that threshold? Stated otherwise, can such free speech
in dissent over the war ever be thought to equate to "yelling 'fire'
in a crowded theatre"?

Nautico --

That the question would come up about the definition of "aid and
comfort" is an indication of how unprecise the term is.  And how the
power is in the hands of the prosecution.

Walking down the street with a sign saying "What would Jesus do?"
could be considered "aid and comfort" to the enemy when a decision is
being made to go to war.  Indeed, you may have noticed that particular
slogan disappeared quickly in early 2003.  During the Vietnam War,
countless arrests were made for people putting flag images in peace
signs -- it was "desecration of the flag."  I doubt few arrests have
been made of people driving around with tattered flags strapped to
their cars today.

In times of civil splits, the definitions become narrower.  After the
English Civil War, civil and religious attitudes were screened
carefully.  Interestingly, it's one of the stories of "God's
Secretaries: The Making of the King James Bible":
http://www.amazon.com/exec/obidos/tg/detail/-/0060185163/qid=1097596084/sr=1-1/ref=sr_1_1/102-9567084-2762523?v=glance&s=books

Similar things have happened in the U.S. during the American Civil
War, the Vietnam War and even earlier.  The Salem Witch trials
occurred during a period when the hegemony of the Puritan Church was
being threatened in Massachusetts, indicating the willingness of a
prosecution to "invent" a threat.

Best regards,

Omnivorous-GA

The story of "Tokyo Rose" is an interesting one:

http://www.straightdope.com/mailbag/mmtokyorose.html

Pink, that was a fascinating account of the trial of Tokyo Rose. Was
she among the last prosecuted for treason under the US Code? Were
there any such prosecutions during the Korean conflict or later?

It could reasonably be argued that by conducting the war in Iraq the
United States gave aid and comfort (at least indirectly) to the real
enemy - the Islamic extremists. Their supporters lists and coffers
will have been filled by the pictures of US 'attrocities' (their
phrase)... could the present administration therefore not be indicted?

Well, obviously it doesn't make that much sense but its an interesting idea.

[Apologies... not really that related to the question, but its late in
the day and I've been at work for 11 hours...]

Nautico --

These two articles from the National Review are interesting because of
the historical review.  It appears that the last two treason cases
were 1945 and 1947, Cramer v. U.S. (1945) and Haupt v. U.S. (1947) --
though the two cases may be a single event.  The articles came up when
John Walker Lindh, an American citizen, was captured as a member of
the Taliban:
http://www.nationalreview.com/comment/comment-kmiec012102.shtml
http://www.nationalreview.com/comment/comment-toensing021202.shtml

Best regards,

Omnivorous-GA

Quite recently, there has been a controversy over the rights of an
American citizen to give verbal aid and comfort to the enemy:

http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=7047

In answer to your question about where the line is crossed, I think
you will find this useful:

"AID AND COMFORT. The constitution of the United States, art. 8, s. 3,
declares, that adhering to the enemies of the United States, giving
them aid and comfort, shall be treason. These words, as they are to be
understood in the constitution, have not received a full judicial
construction. They import, however, help, support, assistance,
countenance, encouragement. The word aid, which occurs in the Stat.
West. 1, c. 14, is explained by Lord Coke (2 just. 182) as
comprehending all persons counselling, abetting, plotting, assenting,
consenting, and encouraging to do the act, (and he adds, what is not
applicable to the Crime to treason,) who are not present when the act
is done, See, also, 1 Burn's Justice, 5, 6; 4 Bl. Com. 37, 38."

FREE DICTIONARY.COM
'Legal Dictionary'
http://legal-dictionary.thefreedictionary.com/Aid%20and%20comfort


Clearly one cannot be considered or found guilty of AIDING unless such
aid is imported to the enemy. "THIS" is where the line was crossed in
your example number 1 as opposed to examples 2 and 3 where the
dissention was merely verbalized.

I hope this answers your question.

regards;
tutuzdad-ga

...This, of course, is the defining statement:

"They [violators] import, however {by whatever means], help, support,
assistance, countenance, [and] encouragement [to the enemy]."

tutuzdad-ga