Treason? Espionage? Both charges have been bandied about pretty freely lately. Whether a person has committed one or the other seems to depend on whether a state of war exists between the USA and whatever foreign nation is involved in a given conspiracy, or whether “force” was used to achieve its goals.
An article in the New York Times, published Jan. 25, 1861, refers to the 1799 decision of Justice Samuel Chase in the case of John Fries, a Pennsylvania Dutch farmer accused of treason for his part in the tax rebellion that occurred in Bethlehem, PA.:
"That if a body of people, conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; … and that it is altogether immaterial whether the force used is sufficient to effectuate the object; any force connected with the intention will constitute the crime of levying war.”
In other words, to plan to oppose the interests of the U.S. is a high misdemeanor, but to put that plan into action by using force - no matter how much or how little force is used - is the treason of levying war on the United States.
Chase’s decision, perhaps influenced by the political pressures of the time, was one of the articles of impeachment levied against him a few years later, and Fries, along with everyone else involved in the rebellion, were later pardoned by President John Adams in light of the particular circumstances.
Nevertheless, the decision reflects the Constitution’s narrow definition of treason, also quoted here from earlier in the same article: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
So treason is about “levying war” by opposing the United States using “force”. Okay. That makes sense. Now, what about espionage?
USLegal.com https://definitions.uslegal.com/e/espionage/ defines espionage as “the crime of spying on the federal government and/or transferring state secrets on behalf of a foreign country. If the other country is an enemy, espionage may be treason, which involves aiding an enemy. The term applies particularly to the act of collecting military, industrial, and political data about one nation for the benefit of another.”
Data about US elections was definitely collected by Russia for its own benefit. Anyone found to be knowingly involved in any of that collection is guilty of espionage.
What about “force”, though? Was force employed when the information thus collected was “weaponized” - used to execute a plan to influence the election of 2016?
Another definition from USLegal.com refers to the Espionage Act of 1917. https://definitions.uslegal.com/e/espionage-act/ “The Act criminalizes and punishes espionage, spying and related crimes. … The Act deems any person a criminal if s/he is found obtaining information with respect to the national defense with a reason to believe that the information to be obtained is to be used to the injury of the U.S.”
Did that plan to influence our election affect the national defense? Did it cause injury to the United States? Did that injury constitute an attack on the US? If so, was that attack an act of war?
Here’s one more definition from USLegal.com - https://definitions.uslegal.com/a/act-of-war/
“An act of war is an action by one country against another with an intention to provoke a war or an action that occurs during a declared war or armed conflict between military forces of any origin.”
This definition would seem to confine acts of war to the use of military force. But is an attack by a military force the only way to wage war in the 21st century?
Physical attacks are horrific. They cause loss of life and of resources.
According to the Pearl Harbor Visitors Bureau’s website, a total of 2,403 people died in the Japanese attack there on Dec. 7, 1941. The USS Arizona and 4 other battleships, as well as 13 other vessels were sunk or run aground. All of the dead were non-combatants, since no state of war existed when the attack occurred.
That attack caused President Roosevelt to declare war immediately thereafter, and galvanized America, bringing Democrats and Republicans together into the greatest military-industrial effort the world has ever known.
According to CNN.com, the attack on Sept. 11, 2001 also caused great loss of life and property, but again, resulted in Americans coming together in response, and George W. Bush declaring a “war on terrorism”. Other examples from our history tell the same story.
The attack on our election has resulted in no loss of life - yet - and the damage to our economy seems minimal so far, but the damage it has caused to US credibility around the world, and to our own citizens’ belief in our method of choosing leaders has been incalculable.
Instead of bringing us together in the face of an enemy attack, it has divided us further, when we are already far too divided a people. This is the power of propaganda in the 21st century.
Perhaps the definition of “force”, at least as it pertains to attacks on our country by weaponized information, needs to be looked at. The world has changed since treason was defined in the Constitution. Our enemies have weapons not dreamed of back then.
Today’s propaganda isn’t just leaflets dropped over enemy territory, or a voice on a static-filled radio channel. Today’s propaganda, based on the information stolen by its wielders, is tailored to specific audiences and delivered with the accuracy of a smart bomb to its target’s eyes and ears.
Its object: to divide democratic peoples against themselves.
The Left and Right in America have drifted so far apart there is no longer any common ground between them. The same thing is happening all over the Western world. The Right has always been mistrustful of communism and socialism, so it seems strange that their interests and those of Russia would coincide, but Russia is no longer a communist country, if it ever was. It’s an oligarchy. A dictatorship by the rich over everyone else.
The leaders of places like that fear true democracy. Democracy looks really good to those under the power of an authoritarian regime. With the world-wide information network showing them people living with greater freedom and the power to choose their own leaders, it’s getting harder and harder to keep the sheep placid.
What’s a despot to do? Why, use the Web against them, of course.
Free countries naturally have various factions who disagree with one another. The same thing that makes democracies vital is also their biggest weakness. If a despot can keep those factions focused on the things that make them different, and stir up their anger until they forget what holds them together, maybe that despot can destroy them from within.
Without gathering armies (other than armies of hackers, anyway), without firing a shot, governments can be toppled.
Does that constitute “force”? Is it “levying war”? Does it turn espionage into treason?
I think these are questions we’ll need to answer soon, if we want to save our democracy.