About a week ago Illinois Senator Dick Durbin uttered his now infamous Pol Pot/Nazi comparison to conditions at GITMO. While these remarks were inflammatory and hopelessly misguided they didn’t, contrary to what some right-wing bloggers and conservative pundit Hal Linsey claim, amount to treason. Those on the right would have Durbin’s head for allegedly giving aid and comfort to our terrorist enemies. So Linsey et al would equate Durbin with the Rosenberg twosome, Alger Hiss, Benedict Arnold, and John Walker Lind. How nice.
From a Constitutional point of view one could make the argument that Durbin had qualified immunity to say whatever the hell he wanted because his comments were part of a Senate floor debate. Under Article 1 Section 6 Congressmen, “Shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” If Durbin indeed made his statements outside the protective confines of the Senate Chamber then he might face a different set of problems then incurring the ire of the right.
Since Durbin’s liability hinges on whether his comments were truly treasonous let’s look at the definition of treason. In merry old England the concept of treason was amorphous and carried with it dire consequences. Two types of treason were delineated in the United Kingdom; petty treason and high treason. Petty treason was murdering one’s superior. High treason consisted of: 1) When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir; 2) If a man do rape the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir; 3) If a man do levy war against our lord the king in his realm; 4) If a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere. Those found guilty were often hanged, drawn, and quartered. Women found guilty of treason were often burned alive at the stake.
Since the British application of the term treason was arbitrary at best and the punishment was a protracted and cruel execution the Founding Fathers of these United States sought to more clearly and succinctly define treason. As defined in Article 3 of the Constitution treason is waging war against the U.S. or giving aid and comfort to the enemy. The case law on what constitutes treason is fairly settled. In the history of the U.S. fewer than forty prosecutions for treason have taken place yielding a handful of convictions. Even Julius and Ethel Rosenberg were only found guilty of espionage and they sold nuclear secrets to the Soviets. None of the couple dozen or so convicted were found guilty for the utterance of mere words. Aaron Burr was not found guilty of treason even though he allegedly conspired with Spain and England shortly after the American Revolution. John Brown took part in murders just before the outbreak of the Civil War. Brown’s abolitionist acts defied the will of slave owners in the south and he paid for his deeds with his life. During WWII twelve people were punished for treason. Tokyo Rose and Axis Sally were both found guilty of treason for their broadcasts of propaganda designed specifically, by their own admittance, to demoralize our troops.
No one here is defending Durbin or his comments. He was foolish and should beg forgiveness for the stupid analogy of comparing GITMO to some of the most murderous regimes this planet has ever seen. He should be admonished for in effect decrying the military as point men in Bush’s delusional escapade. He should be vilified for comparing our valiant soldiers to those that murdered 12,000,000 Europeans in concentration camps, those that executed 1.5 million dissidents in the Killing Fields of Cambodia, and those who aided Stalin in his megalomaniacal purge of 20 million of his own people in the Gulags of Siberia.
That said I find the groundswell of opinion that Durbin is guilty of treason to be equally as troubling. Apparently some conservatives wish to greatly expand the real definition of giving aid and comfort to the enemy. They would have treason and treasonous activity include criticism and derision of the government. They would wipe their collective butts with the Constitution in order to wreak vengeance on those who would besmirch the reputations of the President, his administration, and/or the military. Before the conservatives fundamentally alter the Constitution they should evaluate the true ramifications of their actions.
We would no more hand out speeding tickets at the Indianapolis 500 than we would hold people criminally liable for dissent. What is truly frightening about this are the implications. Under the right’s definition of treason nearly any public statement defaming the current president or the military would be considered treasonous activity and thus one could be held on par with Judas Iscariot, Cassius, Brutus, and Ephialtes, some of history’s most notorious traitors. Durbin is a dipshit but Judas he is not.
