Michael Gaynor
Is there a reason to prosecute the ACLU for treason?
By Michael Gaynor
Article III, Section 3, Clause 1 of the United States Constitution 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."
Levying war is not the only kind of treason.
There is also adhering and giving aid and comfort.
The dictionary defines adhere as "to give support or maintain loyalty."
Interfering with governmental efforts to protect people by random checks or constitutionally permissible profiling may be supporting, aiding and comforting the enemy.
Of course, the ACLU describes itself and its mission in glowing terms: "The ACLU is our nation's guardian of liberty. We work daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States. Our job is to conserve America's original civic values — the Constitution and the Bill of Rights.
"***
"The mission of the ACLU is to preserve all of these protections and guarantees:
But, in time of war, and terrorists now are warring with America, the ACLU's absolutism may lead it to cross the line between constitutionally protected action and treason.
It has been said that the pen is mightier than the sword. And the ACLU's litigation tactics may give much more aid and comfort to the enemy than the ACLU lawyers could provide if they gave up the practice of law and reported for training from Al Queda and took on the men and women of the United States military instead of federal, state and/or local government lawyers.
In 1947 the United States Supreme Court upheld a father's conviction of treason, although the overt acts relied upon to support the treason charge — harboring and sheltering his son in his home and assisting his son in purchasing an automobile and securing employment in a defense plant — were all acts which a father would naturally perform for his son.
However, this son was an enemy spy and saboteur.
And the Court ruled: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparations and plans, the purpose to aid and comfort the enemy becomes clear."
To be sure, the Court noted that there must be adherence as well as acts that give aid and comfort, that "if there is no intent to betray, there is no treason," but the Lynn Stewart case recognized that a lawyer can cross the line between zealous representation, which is a lawyer's duty, and criminal complicity, which is a crime.
The ACLU surely knows that terrorists are out to kill Americans, especially civilians, including women and children, and to undermine America's confidence and economy.
If the ACLU chooses to interfere with governmental efforts to protect people by filing lawsuits challenging random searches or properly targeted searches, thereby diverting necessarily limited governmental resources to deal with the ACLU instead of homicide bombers and their malevolent masters, the question arises as to whether the ACLU is diabolical or merely deluded.
Justice Robert H. Jackson, who wrote for the Court in Haupt v. United States in 1947, realistically interpreted the Constitution in his brilliant dissenting opinion in Terminiello v. Chicago, a 1949 free speech case in which the Court overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot, holding that Chicago's breach-of-the-peace ordinance violated the First Amendment. Justice Jackson opined: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
The ACLU should temper its doctrinaire absolutism with Justice Jackson's practical wisdom, lest it cross the line between legitimate advocacy and treason.
© Michael Gaynor
Article III, Section 3, Clause 1 of the United States Constitution 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."
Levying war is not the only kind of treason.
There is also adhering and giving aid and comfort.
The dictionary defines adhere as "to give support or maintain loyalty."
Interfering with governmental efforts to protect people by random checks or constitutionally permissible profiling may be supporting, aiding and comforting the enemy.
Of course, the ACLU describes itself and its mission in glowing terms: "The ACLU is our nation's guardian of liberty. We work daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States. Our job is to conserve America's original civic values — the Constitution and the Bill of Rights.
"***
"The mission of the ACLU is to preserve all of these protections and guarantees:
- Your First Amendment rights-freedom of speech, association and assembly. Freedom of the press, and freedom of religion supported by the strict separation of church and state.
- Your right to equal protection under the law — equal treatment regardless of race, sex, religion or national origin.
- Your right to due process — fair treatment by the government whenever the loss of your liberty or property is at stake.
But, in time of war, and terrorists now are warring with America, the ACLU's absolutism may lead it to cross the line between constitutionally protected action and treason.
It has been said that the pen is mightier than the sword. And the ACLU's litigation tactics may give much more aid and comfort to the enemy than the ACLU lawyers could provide if they gave up the practice of law and reported for training from Al Queda and took on the men and women of the United States military instead of federal, state and/or local government lawyers.
In 1947 the United States Supreme Court upheld a father's conviction of treason, although the overt acts relied upon to support the treason charge — harboring and sheltering his son in his home and assisting his son in purchasing an automobile and securing employment in a defense plant — were all acts which a father would naturally perform for his son.
However, this son was an enemy spy and saboteur.
And the Court ruled: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparations and plans, the purpose to aid and comfort the enemy becomes clear."
To be sure, the Court noted that there must be adherence as well as acts that give aid and comfort, that "if there is no intent to betray, there is no treason," but the Lynn Stewart case recognized that a lawyer can cross the line between zealous representation, which is a lawyer's duty, and criminal complicity, which is a crime.
The ACLU surely knows that terrorists are out to kill Americans, especially civilians, including women and children, and to undermine America's confidence and economy.
If the ACLU chooses to interfere with governmental efforts to protect people by filing lawsuits challenging random searches or properly targeted searches, thereby diverting necessarily limited governmental resources to deal with the ACLU instead of homicide bombers and their malevolent masters, the question arises as to whether the ACLU is diabolical or merely deluded.
Justice Robert H. Jackson, who wrote for the Court in Haupt v. United States in 1947, realistically interpreted the Constitution in his brilliant dissenting opinion in Terminiello v. Chicago, a 1949 free speech case in which the Court overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot, holding that Chicago's breach-of-the-peace ordinance violated the First Amendment. Justice Jackson opined: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
The ACLU should temper its doctrinaire absolutism with Justice Jackson's practical wisdom, lest it cross the line between legitimate advocacy and treason.
© Michael Gaynor
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