Ex Parte Hentoff

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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NY Sun
NEW YORK SUN CONTRIBUTOR

One of the best columnists in the city, Nat Hentoff of the Village Voice, is in a lather over treason. He has worked this froth up in the wake of the decision of the Bush administration to bring, for the first time since World War II, a charge of treason, in the instant case against an American who is accused of levying war or adhering to an enemy of the United States by broadcasting for Al Qaeda. Mr. Hentoff doesn’t seem to be focused on the possibility that treason was committed, not that we doubt for even a trice his own loyalties. Rather he is upset at the decision of the Congress to bow to the Supreme Court and set up military commissions to deal with enemy combatants. He is promising to examine, in a coming column, what he calls “the prospects for treason trials of Americans under the presumptions of guilt embedded in the new law for ‘supporters’ of terrorists.” And he vows to do so while “avoiding paranoia and reverse agitprop.”

Well, that’ll be refreshing. In the spirit of collegiality, we have sent over to Mr. Hentoff’s chambers a copy of Ex parte Bollman and Swartwout. This is the opinion of the Supreme Court in which the fourth chief justice of the United States, John Marshall, laid down the long lines in respect of treason. He relied on Article III of the Constitution, which prohibits defining treason in any way save levying war against the United States or adhering to their enemies, giving them aid and comfort. “As there is no crime which can more excite and agitate the passions of men than treason,” Marshall wrote in one of his most famous sentences, “no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry.” Then he decided not to permit prosecutors to proceed against two confederates of Vice President Burr because, although they had conspired to levy war against the United States, the war hadn’t been actually levied.

Wrote Marshall: “To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences.” That can be of scant comfort in the current conflict, when war is in fact being levied against us. For Marshall went on to write: “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

What Mr. Hentoff seems to be fretting about is the echoes of the language of the treason clause of the Constitution in the Military Commissions Act, which is the measure that Congress passed to bring the law in line with the Supreme Court’s requirements. It leads Mr. Hentoff to wonder whether “this president” (he seems to worry about Mr. Bush more than other presidents) could “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?” He quotes Justice Jackson as saying that the language in the Constitution defining treason is “packed with controversy and difficulty” because of phrases like “giving aid and comfort.” Mr. Hentoff seems unmollified by the fact that under American law, as we pointed out in an earlier editorial, treason applies only to those who owe allegiance to the United States in the first place.

Mr. Hentoff takes the trouble to commend the Sun for our cautioning in an editorial October 13 that “treason is very different from dissent” and for pointing out, as we did, that we have “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, he says, Mr. Bush, Vice President Cheney, Attorney General Gonzales, and the director of the Federal Bureau of Investigation, Robert Mueller, “are not editors of the Sun.” He’s upset with what he calls their devotion to the authority of the “unitary executive” to “override such American laws as the War Crimes Act” and international treaties. Let’s see whether Mr. Hentoff himself is prepared to credit Marshall’s famous warning, in Ex parte Bollman, that “all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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