Did Arnett Commit Treason?

Like many Americans today, I am angry. My gut reaction is that Peter Arnett, if he be a U.S. citizen, committed treason yesterday. As a lawyer, I feel uncomfortable uttering those words, not knowing how treason actions really work. So I did some research. Surprisingly, I feel even more adamant that he committed treason.

How did I come to that conclusion? Well, let' look at the law.

Constitutional Mandate
First, the U.S. Constitution, Article 4, Section 3: "Section 3 - Treason: 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.

"The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

Did not everyone in the world witness these statements? Need we have more? Did not Arnett confess to making the statements in his apologies on the "Today" show? Under Federal Rules of Evidence, such a statement against interest is admissible and not subject to exclusion under the rules for hearsay at Fed. R. Evid. 801 to 803.

Congressional Input
Second, U.S. Code article 18, section 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."

But we may be guilty of treason for not pointing it out 18 USC sec 2382: "Misprision of Treason: Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both."

Another twist is 18 USC sec. 2387: "Activities affecting armed forces generally
"(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:
"(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or
"(2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States -
"Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
"(b) For the purposes of this section, the term ''military or naval forces of the United States'' includes the Army of the United States, the Navy, Air Force, Marine Corps, Coast Guard, Naval Reserve, Marine Corps Reserve, and Coast Guard Reserve of the United States; and, when any merchant vessel is commissioned in the Navy or is in the service of the Army or the Navy, includes the master, officers, and crew of such vessel."

US Supreme Court
Third, the US Supreme Court in its major case on the subject, Cramer v. U.S. Particularly, its implicit proposition that speech can be treason, even though its point was there must be more: "On the other hand, a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. " Cramer, 325 U.S. at 29. The Court's point is that there must be intent to betray over and above the speech. Speaking to the enemies' people? Calling the enemy successful?

Conclusion
We have a legal duty to prevent our government in form and action from being undermined. Now, suffice it to say I do not fear that our government will fall because a small-minded person like Arnett has spoken, but these is tragic.

Should we restrict protest? No! No! No! The professor at Columbia University has spoken his mind that we should suffer a thousand Mogadishus. This statement is far less damaging because of its location and circumstances. It was not done in manner that will knowingly help the enemy. It is a loud mouth. Have him make the same statement in front of an Iraqi audience when Iraq is the enemy then a crime is committed.

Arnett should be prosecuted. Otherwise, we all become felons, guilty of aprising treason.