Treason and the Iraq War

Treason is one of the persistent issues brought up by the right-wing in relation to the war. For Ann Coulter, Rush Limbaugh and other conservative activists, just about anyone who publicly dissents against the war is committing the treason of giving "aid and comfort" to the enemy. In a recent reply (sorry, I don't do links), Jack Dallas listed a wide variety of Democratic politicians who he believed should be in jail, including "Ted Kennedy, John Kerry, Howard Dean, Dick Durban, Robert Byrd, Charlie Rangle, Nancy Pelosi, [and] Barbara Boxer" who he thinks should be in jail for treason. Quite a long list, but nothing unusual from the right-wing. Sceptical, Publius, and others have made the same kinds of accusations on these boards as well.

Here, I want to turn the tables and argue that the Bush administration is coming pretty close to committing treason itself. The standard for treason defined by the Constitution is quite high. But I believe that the Bush administration's conduct of the war does come close to one of the types of treason defined by the Constitution.

Here's the relevant clause from Article 3, section 3:

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

The text of the Constitution defines two types of treason. The first is waging war against the United States. The primary example of this kind of treason would be the war that the Confederates waged against the United States. Jefferson Davis, Robert E. Lee, James Longstreet, and everyone else in the Confederate leadership could have been tried for treason under this understanding of the treason section. It also might be possible to view the leadership of terrorist organizations in the United States as "levying war" against this country and thus as committing treason. In this sense, someone ordering Timothy McVeigh to bomb the Federal Building in Oklahoma City might have been "levying war" and thus committing treason. That would not have been the case with a foot-soldier like McVeigh himself or a soldier in the Confederate Army.

The second phrase is more flexible, but narrowly emphasizes "adhering to" the enemies of the United States as the standard for treason and treats "giving aid and comfort" to the enemy as deriving from attachment to the enemy. It is in this sense that E. A. Poe and Tokyo Rose would have been committing treason during WWII. They were adhering to the enemies of the U. S. and were giving "aid and comfort" out of that allegiance.

Right-wingers want to claim that public criticism of the war such as claiming that the administration lied about WMD in Iraq is treasonable because it gives "aid and comfort" to al-Qaeda. However, the claim is extremely weak on two grounds. First, the right-wing makes several assumptions about the efficacy of Democratic opposition. They assume that the criticisms of war opponents are communicated to the enemy, that the enemy cares about the opinions of war opponents, and that the enemy actually is encouraged by those criticisms as opposed to other things. The Democratic leadership fails to provide aid and comfort on all three counts. It's message (to the extent that it has a message) doesn't get heard, there's no reason to believe that al-Qaeda cares about their message, and there are so many good reasons for al-Qaeda to feel encouraged about the situation in Iraq that the status of American opposition to the war would have no effect. More on this last point later.

Even more decisively, the Democrats do not "adhere to the enemy" and I have not even heard of accusations to this effect from the right. Because they do not actually adhere to the enemy, nothing the Democrats do can be seen as giving "aid and comfort" in the sense defined by the treason clause. Ultimately, the treason clause was meant to prevent people from being accused of treason unless they were actually levying war against the U. S. themselves or adhering to an enemy waging war against the U. S. All the accusations of the "soft treason" of providing highly indirect forms of "aid and comfort" to the enemy are excluded by the wording of the clause.

On the other hand, the Bush administration has been doing such a poor job with the occupation that it indeed is useful to measure their conduct against the standard of "adhering to the enemy." The Bush administration's conduct of the war involves two stages of malfeasance, one that is clearly not treasonable and another that is questionable. The first stage of malfeasance occurred immediately after the overthrow of Saddam and the beginning of the occupation. It is well known that the Bush administration was negligent in putting down the initial anarchy, cleaning up the ammunition dumps, closing the borders, and doing the other basic tasks needed to secure Iraq right after the invasion.
This is now conventional wisdom and several sources on the right have complained about the incompetence of the early occupation. Needless to say, the ineffectiveness of the occupation provided an enormous amount of "aid and comfort" and especially encouragement" to the enemy. The U. S. had an aura of invincibility when the tanks rolled into Baghdad, but that aura was lost forever because of the initial misconduct of the occupation and the U. S. is now seen as a kind of violent, blundering giant. By recklessly wasting the reputation for effectiveness that they had gained in the Persian Gulf War and the invasion of Iraq, the Bush administration provided our enemies with a gold mine of “aid and comfort” that boosted the morale of Saddam holdovers, gave men reason to hope that they could take out revenge on American forces for killing members of their families, and provided incentives for global jihadis to start coming into Iraq from Jordan, Syria, and Saudi Arabia. If providing indirect forms of “aid and comfort” to the enemy were treason, the Bush administration’s early approach to the occupation would have been treasonable negligence.

However, providing “aid and comfort” is not treason. So arrogant, reckless, and incompetent that they were acting “as if” they wanted the enemy to succeed, the Bush administration was still not committing treason. That’s because they were not “adhering” to the cause of America's enemies.

Nevertheless, the situation got more complex after the beginning of 2004. When the insurgency started gaining momentum in Spring 2004, the Bush administration was faced with a relatively stark choice. They could dramatically increase troop and support levels or they could seek to tackle the insurgency with the same resources that had failed to keep the insurgency from growing in the first place. Severe costs were entailed by each choice. Given that Gen. Shinseki, the Democrats, Sen. McCain, and Sen. Hagel had all already called for more troops, increasing troop strength would have meant admitting that the Bush administration had grossly underestimated the dangers of the invasion, the strengths of the insurgency, and popular hostility to the occupation. To make such an indirect admission would have been tantamount to confessing that they had mismanaged the invasion and occupation, and would have cost George Bush re-election. So, the Bush administration “stayed the course.”

Not dramatically increasing the commitment to Iraq had costs as well and it was the Bush administration’s awareness of the consequences that pushed them toward the treason line. Certainly, failure to increase American resources meant countenancing the permanency of the Sunni insurgency and giving up the expectation of controlling Iraq with American troops while new Iraqi forces were being trained. Last year, the American military's rhetoric shifted from eliminating insurgents to ensuring that the insurgents did not have "complete freedom of action" in cities like Samarra, Haditha, and Tel Afaar in Western Iraq. Likewise, instead of providing security for a country secured by American troops, the new Iraqi military is being trained to hold its own against an insurgency acknowledged to be formidable.

This brings us to the crux of the question. Did the Bush administration go beyond countenancing the insurgency to viewing a strong insurgency as beneficial to administration interest? How might a strong insurgency have benefited the interests of the Bush administration? First, with a strong and growing insurgency, the Bush administration could still get a lot of traction out of portraying themselves as "tough on terrorism" and the Democrats as soft.

Second, a strong insurgency was an extremely important resource in convincing the Iraqi government to keep U. S. troops in Iraq. One of the top priorities of the invasion was to introduce a large American troop presence into Iraq. However, it also was well known that the Shiite government was eager for American troops to leave at the earliest possible date. The Bush administration had initially expected to be able to install Ahmed Chalabi or some other secular exile who would be favorable to American interests in Baghdad. By the time the insurgency gained ground however, Grand Ayatollah Sistani had forced the Americans to open the new Iraqi government to general elections and had begun organizing the religious Shiite parties into the dominant political faction. It was well known that Sistani and the most important ayatollahs were only marginally less hostile to American occupation than firebrands like Moqtada al Sadr. In this context, a large and growing insurgency was a weapon that Bush’s policy makers could use to convince the Shiite government into continuing to accept American troops and cooperate with American occupation authorities. If a Shiite government asked American occupiers to leave, the whole invasion would be a useless waste of lives, resources, and money that replaced the anti-American regime of Saddam Hussein with another anti-American Shiite government. Right now, the occupation only makes political sense for the Bush administration if there is a large and formidable insurgency.

This is where the Bush administration comes up to the treason line. Not only are they continuing to act “as if” they wanted the insurgency to grow and prosper, they are developing an “interest” in the continued effectiveness of the insurgency. Having an interest in the (partial) success of the insurgency is not the same as “adhering to the enemy,” but it is close enough that the Bush administration warrants further investigation. I would want to know if people in the White House have been involved in meetings where there were “counter-intuitive” discussions of the “benefits” of an active insurgency for the American and Bush administration interests. I would want to know the extent to which considerations of the benefits of the Iraq insurgency informed the decision-making of policy-makers up the line. In other words, I want to know how much the Bush administration considers the ENEMY’S interest to be THEIR interest. That seems to be about as close to committing treason as you can get without actually “adhering to the enemy” or “levying war against the United States.