Did the 47 Senators Commit Treason?

It’s been a while since people have thrown the “T” word around with abandon. The last time I can remember hearing someone being called a traitor was back during George W. Bush’s administration when anyone who criticized the Iraq war was labeled a traitor. Regardless of one’s political philosophy, it wasn’t appropriate to label those who were critical of that administration’s policies as traitors, and it isn’t appropriate to label the 47 senators who signed on to an open letter to Iran earlier this week as traitors.

If you don’t know what I’m talking about, on March 9, 2015, 47 Republican senators signed a letter (PDF) addressed to the Leaders of the Islamic Republic of Iran.  In it, the signatories wanted to inform the Leaders of the United States’ constitutional system, and to let the Leaders know that “while the president negotiates international agreements, Congress plays the significant role of ratifying them.” Furthermore, “[a]nything not approved by Congress is a mere executive agreement.” Going one step further, the signatories wanted to make it clear that the president gets to serve, at the most, eight years, but Senators get to serve for an unlimited number of 6-year terms.  Therefore, for whatever reason, the signatories wanted to make clear that

we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

A New York Daily News editorial, surprisingly enough, called the letter “a treacherous betrayal of the U.S. constitutional system.” The editorial has been seized upon by various opinion outlets as proof that the signatories are traitors and trying to undermine ‘Murica.

I don’t know about the latter, but the former is certainly not accurate, and it really grates on me when loaded terms like “traitor” are thrown around lightly.  Like cheapening acts of terrorism by naming people who cut down trees out of protest as “eco-terrorists,” calling the signatories traitors for penning a misguided open letter cheapens what treason really is.

Treason Defined

Treason is the only crime clearly defined in the United States Constitution. (Counterfeiting garners a mention in the Constitution, as do piracy and crimes against the law of nations. U.S. Const. Art. I, sec. 8.) By being the only crime that is specifically incorporated into the controlling document of the United States, treason is clearly a crime to be treated seriously.

Article III, section 3 states:

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.

It’s a pretty high standard: you need two witnesses to an overt act or a confession, and you need to either levy war or give the enemy aid and comfort with adherence. 18 U.S.C. § 2381, which codifies the crime of treason, is defined a little differently:

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….

The punishment for treason is death, or imprisonment for at least five years. And you can’t hold office in the United States after conviction.

Adherence, and Aid and Comfort, to the Enemy

The two definitional clauses that always trip people up are the adherence to the enemy and the aid and comfort clauses.  It is important to note that

[o]ne may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Kawakita v. United States, 343 U.S. 717, 736 (1952).

In other words, both adherence and aid and comfort are required. In Kawakita, the defendant had dual citizenship with the United States and Japan. During World War II, he went to Japan to act as an interpreter, and the overt acts which led to the treason charges involved his kicking American prisoners and forcing them to continue working. In these respects, his acts “showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States”; instead, they “actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests.” Id. at 741.  In other words, aid and comfort involves “giv[ing] the enemy the ‘heart and courage to go on with the war.'” Id. at 741-42, citing Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

The defendant’s adherence to the enemy was shown by citing his comments to prisoners: “You Americans don’t have no chance. We will win the war.”; “I will be glad when all of the Americans is dead, and then I can go home and live happy.” There were many more such statements, and they established that he had “align[ed] himself with the Japanese cause.” Id. at 743-44.

Whatever one might think about the senators’ letter to Iran, whether it was good idea or a bad idea, it is clear that the senators are not traitors. While the letter may perhaps serve to undermine the president’s ability to negotiate with Iran, there’s no indication that the senators really want Iran to come out ahead in any negotiations.  There’s also no real sense that there might be another “enemy” to whom they are supposedly adhering.  Furthermore, it’s difficult to determine just how the letter would give any aid and comfort other than allowing Iranian negotiators to tell themselves “if we don’t agree to anything, we’re in the clear, and even if we do agree to something, Congress will just unravel it.”  That’s pretty nebulous. No, in then end, it’s a simple political ploy, and the Daily News would have served itself well to reserve the term “traitor” for true instances of treason.

(Of course, the paper probably wouldn’t have gotten a traffic bump, and it wouldn’t be able to crow about #47Traitors trending on twitter, so…)

TYSK: 5 Reasons Conspiracy Charges are Bears

Image sourced from wikimedia under a Creative Commons Attribution-Share Alike 2.0 Generic license.

I can’t tell you how many times I’ve spoken with someone who was recently arrested for a federal drug conspiracy, and that person says “they didn’t even find drugs on me!” While I definitely feel for that person, I also know that, when it comes to conspiracy charges, actual possession is largely irrelevant.

There are at least five reasons conspiracy charges are absolute bears for defendants to deal with:

  1. All that is required is an agreement to engage in the existing criminal activity; no overt act is required. “To prove that a defendant is guilty of conspiring to distribute illegal drugs under 21 U.S.C. § 846, the Government must prove beyond a reasonable doubt: ‘(1) the existence of an agreement between two or more persons to violate narcotics laws, (2) knowledge of the conspiracy and intent to join it, and (3) voluntary participation in the conspiracy.’ … The Government need not prove an overt act to show participation in a conspiracy.” United States v.  Turner, 319 F.3d 716, 721 (5th Cir. 2003) (internal citations omitted).
  2. Many defendants have no knowledge of the identities of the people they are charged with. Indeed, it is quite common for the “mules” to have no knowledge of the other “mules” in a drug trafficking organization, often by design. The fewer weak links and areas that can be exploited, the better, as far as the organization is concerned.
  3. Punishment for a conspiracy is exactly the same as for the actual commission of the crime. According to 21 U.S.C. § 846, “any person who … conspires to commit any [drug] offense … shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the … conspiracy.”
  4. All conspirators are liable for all the activity conducted by the entirety of the conspiracy, unless the conspirator withdraws from the conspiracy.  See, e.g., United States v. Skorniak, 59 F.3d 750, 758 (8th Cir. 1995) (“[T]he government’s theory of the case was that [codefendant] withdrew from the conspiracy in 1989 or 1990, thus making him unaccountable for the subsequent activities for the conspiracy for which [defendant] was held accountable.”)
  5. General notions about hearsay are relaxed for statements made by co-conspirators.  “An out of court statement by a coconspirator is not hearsay and may be introduced as an admission by a party opponent.” United States v. Roach, 164 F.3d 403, 409 (8th Cir. 1998) citing Fed. R. Evid. 801(d)(2)(E).

There are certainly other considerations to take into account when conspiracy charges are brought, but these are the five most common concerns I’ve heard from my clients.

“I Just Got a Target Letter; Now What?”

If you have received a letter from a United States Attorneys Office in your area stating that you are a target in, or the subject of, a federal criminal investigation, that’s not news you want to hear. It’s also not something you want to ignore.

These letters are known as “target letters,” and about the only thing good about receiving a target letter is that the letters at least give you some warning about the fact the federal government thinks you committed a federal crime, such as conspiracy, wire fraud, mail fraud, or money laundering.

Targets, Suspects, and Witnesses

Generally speaking, when it comes to federal investigations, there are targets, suspects, and witnesses. Targets are people who are the focus of a federal grand jury panel; in other words, targets are the people the Assistant US Attorney wants to indict. Witnesses are the people who might have minimal criminal responsibility, but who may have information that will help the AUSA convince the grand jury to indict the target.  (This not to say that witnesses can’t get indicted; they can, but it isn’t quite as often.) Suspects are those people who aren’t necessarily the focus of the investigation, but who might have a little more criminal responsibility than a mere witness.

If you receive one of these target letters, it doesn’t necessarily mean that you will get indicted.  You should, however, at the very least contact an attorney to discuss the nature of the allegations contained in the target letter and to discuss your options. Ignoring the target letter means that you are absolutely at the mercy of the federal government; proactively acting on the target letter by consulting an attorney with substantial federal criminal defense experience will at least give you a better chance to drive the narrative in your favor.

KSM and Others Leave Gitmo for New York?

Interesting.  According to the AP (and others), five Gitmo detainees will be tried in a civilian court in New York for the 9/11 attacks.  Among these detainees will apparently be Khalid Sheikh Mohammed, who purportedly confessed to masterminding the attacks after severe waterboarding.  Which raises all sorts of evidentiary issues, as Charlie Savage of the New York Times points out:

The decisions about how to prosecute Mr. Mohammed and Mr. Nashiri have been particularly difficult because their defense lawyers are expected to argue that they were illegally tortured by the Central Intelligence Agency during their confinement, tainting any evidence gathered from their interrogations.

In addition to the civilian trial(s), five others will be sent to a brig (probably in South Carolina) for trial before a military commission.  Attorney General Eric Holder is expected to make an official announcement at 11a today.

This announcement, like the under-reported news that President Obama has sent war planners back to the table to come up with better ideas about Afghanistan, signals a potential shift in Obama’s resolve.  Neither decision will be politically popular, and we haven’t seen Obama flex his muscles in quite a while.

Federal Robbery Sentencing

Like I’ve said before, “street crimes” don’t often get prosecuted in federal court, even though they technically can.  Which is why this announcement from last week is surprising:  an Indianapolis man has been sentenced to 22 years in prison for robbing a Steak ‘n Shake and brandishing a firearm while doing so.  (Source)  According to WIBC, US Attorney Tim Morrison, the man was tried in federal court because the Hobbs Act allows it.

This, again, is technically true.  Codified at 18 U.S.C. § 1951 et seq., the law states that it is a federal crime for a person to interfere with commerce by extortion or robbery.  The potential punishment for doing so is imprisonment up to 20 years, a fine, or both.  How, then, did he receive 22 years?  It’s a good question.  Most likely, there are a few other components to the case that haven’t been publicly disclosed, such as other charges, and it is entirely possible that the sentencing judge enhanced the sentence based on a variety of factors, including the individual’s criminal history record: “If reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted.”  (Source)  If the court does depart upward, however, it must do so on the record.

Interesting case, though, and it does raise an eyebrow or two.

Federal Hate Crimes Legislation

Earlier today, I mentioned that the FBI (and other federal agencies) doesn’t typically investigate “street crimes” like assault.  Nonetheless, there’s a new federal crime to be aware of today, and it’s one that proponents of the legislation have been wanting for a very long time.

According to the AP and to the Human Rights Campaign, the new legislation was tacked onto a defense spending bill.  What does it cover?  Hate crimes.

From what I gather, a new section of the U.S. Code will be created: 18 U.S.C. § 249, which will be part of Chapter 13, and which will make it a crime to willfully cause injury (or attempt to cause injury) to a person based on that person’s actual or perceived race, gender, national origin, or sexual orientation.  The punishment will be imprisonment for up to 10 years, or for any term of years up to life if death, kidnapping, or sexual abuse occurs (or attempts to do such are undertaken).  Congress also stated that nothing about the law should be construed as a limit on expression: “Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.”

Murder as Terrorism? Hold up a moment…

It is somewhat axiomatic that the FBI doesn’t generally investigate so-called “street crimes” such as assault, rape, murder, and even low-level drug use.  This isn’t because there aren’t federal laws for these activities.  For example, 18 U.S.C. §§ 1111 et seq. proscribes homicide,  18 U.S.C. §§ 2241 et seq. proscribes sexual abuse, 18 U.S.C. §§ 111 et seq. proscribes assaults, and 21 U.S.C. § 844 proscribes “simple possession” of controlled substances.  Despite having laws that could be enforced by federal authorities, though, it is generally considered an inappropriate use of resources when the states can handle the cases just fine, thank you very much.

That changes, apparently, when murder gets called terrorism.

Read more “Murder as Terrorism? Hold up a moment…”

Medical Marijuana Update … Update

The United States Department of Justice has issued a press release on the changes to the prosecution of medical marijuana providers.  According to Attorney General Holder,

“This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws.”

The release also contains a link to the Guidelines memo, which can be found here.  An example of an inefficient use of federal resources is provided in the memo:

As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

However, if the individual is not in clear and unambiguous compliance, that individual could still face federal prosecution.

It’s a Start

According to the St. Louis Dispatch, Illinois Senator Dick Durbin will be introducing legislation to rectify the severe disparity in cocaine base and cocaine powder federal punishment.  Currently it takes 500 grams of powder cocaine to achieve the same penalty for just 5 grams of cocaine base.  (Cocaine base is better known as “crack.”)  Apparently the legislation would make the ratio 1:1.  This is good, and I hope it’s just the first step toward reforming the federal criminal justice system.

Terrorism Charges

As expected, according to the AP, one of the individuals arrested last week in Denver for making false statements has apparently been indicted in New York on conspiracy to use weapons of mass destruction charges.

Under 18 U.S.C. § 2332a, it is a crime to conspire to use a weapon of mass destruction against, among other things, any person or property in the United States.  It is a crime punishable by up to life imprisonment.  A couple of really important caveats about this charge, though.  First, if the alleged target is a person or property located in the United States, some jurisdictional requirements need to be satisfied; one of the following must be shown:

  • the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
  • such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
  • any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
  • the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

Second, “weapons of mass destruction” does not mean what many think it means.  Yes, it means the nuclear, biological, or chemical weapons which were the supposed reason for invading Iraq.  But it has a much broader definition than just the nasty stuff.  It also includes a destructive device as defined by 18 U.S.C. § 921:

  • a bomb,
  • a grenade,
  • a rocket having a propellant charge of more than four ounces,
  • a missile having an explosive or incendiary charge of more than one-quarter ounce,
  • a mine, or
  • a device similar to any of the devices described in the preceding clauses.

It also means a rifle (other than a shotgun) having a barrel with a bore of more than one-half inch in diameter.  Antique rifles are exempted from this particular definition, however.  Flare guns, too.