'When Does Politics Become Treason?'

by J. Michael Waller
Insight Magazine, December 23, 2003.

Important note, February 15, 2007: The print and online editions of Insight magazine went out with quotation marks erroneously around the first sentence of the story below, giving a false impression that the author and magazine were quoting Lincoln's words. FactCheck.org picked up on the error in August, 2006, after the quote appeared on more than 18,000 blogs and websites. My response to that controversy can be seen here. The text with the lead, as edited but without the quotation marks, follows. The "note on sources" at the end of the article appeared in the original story.

Congressmen who willfully take actions during wartime that damage morale and undermine the military are saboteurs and should be arrested, exiled or hanged. That's what President Abraham Lincoln said during the War Between the States.

While none have suggested such extreme measures in the midst of the war on terrorism, Lincoln's approach illustrates the deadly seriousness of political responsibility in wartime and draws a fine line between legitimate political dissent and aiding the enemy.

The Supreme Court eventually stopped Lincoln's policy of having treasonous lawmakers arrested and tried before military tribunals, but for decades after the war, the late president's Republican Party successfully tagged the Democrats as the "party of treason."

The Democratic Party is 'Playing with Treason'

Today's very different Democratic Party is said to be playing with treason -- even by outraged leaders within its ranks -- to destroy the nation's wartime Republican president. Critics aren't using that word lightly.

But with many liberal politicians having cut their teeth in the protest movement against the war in Vietnam -- a movement characterized by militant displays of support for the Viet Cong and North Vietnamese enemy -- treason is something to be taken lightly.

But two important political commentators with large national audiences recently have compiled damning indictments: Mona Charen in her best-selling Useful Idiots: How Liberals Got It Wrong in the Cold War and Still Blame America First (Regnery), and Ann Coulter in her blockbuster Treason: Liberal Treachery From the Cold War to the War on Terrorism (Crown/Forum). The main difference from Lincoln's day is that the president's enemies are attacking him in the name of "supporting our troops."

Senate Probe Intended to 'Savage' the White House

It started shortly after the liberation of Iraq when Senate Democrats asked the Senate Select Committee on Intelligence to examine whether faulty intelligence might have led President George W. Bush to mislead Congress and the public about the urgency of toppling Saddam Hussein.

The committee chairman, Sen. Pat Roberts (R-Kan.), agreed to a probe in light of the panel's nonpartisan tradition since its founding in the 1970s. But in a sharp break with tradition, the Democrats on the committee, led by Vice Chairman Sen. Jay Rockefeller (D-W.Va.) and pushed behind the scenes by Sen. Carl Levin (D-Mich.), decided to turn the probe into a savage and bitterly partisan weapon against the White House.

Proof of the Democrats' intent came in early November when Fox News received a leaked memo authored by a Rockefeller staffer on the committee. According to the memo, the Democrats' strategy was to "pull the majority as far along as we can on issues that may lead to major new disclosures regarding improper or questionable conduct by administration officials.

For example, in addition to the president's State of the Union speech, the chairman [Roberts] has agreed to look at the activities of the Office of the Secretary of Defense as well as [Under] Secretary [John] Bolton's office at the State Department. The fact that the chairman supports our investigations into these offices and cosigns our requests for information is helpful and potentially crucial."

In other words: exploit the unique bipartisanship of the Intelligence Committee by launching fishing expeditions in the offices of the conservative policymakers at the Pentagon and the State Department, using the Republican committee chairman's signature as a fig leaf.

The plan ordered up by Rockefeller took the partisanship even further: "Assiduously prepare Democratic 'additional views' to attach to any interim or final reports the committee may release. Committee rules provide this opportunity and we intend to take full advantage."

Once the Republicans caught on and stopped cooperating, the plan called for Democrats to "prepare to launch an independent investigation when it becomes clear that we have exhausted the opportunity to usefully collaborate with the majority. We can pull the trigger on an independent investigation at any time -- but we can only do so once."

The timing, according to the memo, would involve pulling that trigger during the heated campaign season of 2004.

A Partisan Attack

The plan was a gross breach of the committee's practices and, even as Americans were being killed in ambushes, it was aimed at hamstringing, in the words of the memo, "the senior administration officials who made the case for a unilateral, pre-emptive war."

Senate Majority Leader Bill Frist (R-Tenn.) was outraged. "For a quarter-century there has been a consensus in the Senate that the committee's nonpartisan tradition must be carefully safeguarded. Nothing else is acceptable. Why? Because this committee deals with information that is unique, that is privileged information, because of the dangerous and sensitive nature of the subject matter for which the Intelligence Committee ... has unique oversight."

"I came to the [Senate] floor because that critical tradition has now been willfully attacked. How can I say that? By this memo," Frist roared. "The Senate Select Committee on Intelligence has been harmed by a blatant partisan attack. I have no earthly idea who wrote the memo. I do know why. I don't know who it was intended for, but I do know why. If you read the memo you can look. It is a sequence of steps spelled out.

"The sequence of steps proposed in this partisan battle plan for the committee itself is without question intended to sow doubt, to abuse the fairness of the committee chairman, Sen. Pat Roberts, to undermine the standing of the commander in chief at a time of war and to launch a partisan investigation through next year into the elections."

Intelligence professionals agree that the plan was a grave breach during time of war, showing reckless disregard for national security and national war aims. Frist, an ex-officio member of the committee, made three demands: that the author or authors of the memo step forward and identify themselves, that "the author or authors and the designated recipient or recipients disavow once and for all this partisan attack in its entirety" and for the perpetrators to make "a personal apology" to the committee chairman.

Almost incredibly to national-security specialists, that was all. No further sanctions. No nothing.

The Democratic Scheme to Undermine the War Effort

"Frist has emboldened the Democrats," warned a senior administration official at the time. And indeed, he did. For rather than repent, confess and seek forgiveness, Rockefeller openly admitted that his staff had done it with his full support and he accused Republicans of "stealing" the proof of the Democratic scheme to undermine the war effort from his staff computers. He and other Democrats demanded and received an official investigation of the "theft."

It was classical Clintonism. "When [Bill] Clinton got a [sexual favor] in the White House, he unleashed a thousand Lanny Davises and he won," says a senior Bush aide, referring to the former president's extremely aggressive and partisan lawyer. "The handling of the Rockefeller memorandum follows the same strategy."

Some Democrats are 'Flirting with Treason'

A top figure in the national-security community fumes, "Some Democrat leaders are flirting with treason while the Republicans are acting like a bunch of sissies."

But it isn't just Senate Republicans, the official concedes. "Where's the fight back from the White House?" Senators and congressmen have been reprimanded, censured, expelled, even put on trial for less.

In some of Capitol Hill's pubs, wags are urging, tongue in cheek, for Republicans to play hardball the way President Lincoln did. Shortly after signing the Emancipation Proclamation in 1863, Lincoln spoke forcefully of the need to arrest, convict and, if necessary, execute congressmen who by word or deed undermined the war effort. At least one congressman was exiled and another awaited the gallows.

"Must I shoot a simple-minded soldier-boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less njurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings till he is persuaded to write the soldier-boy that he is fighting in a bad cause, for a wicked Administration of a contemptible Government, too weak to arrest and punish him if he shall desert.

"I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy." -- President Lincoln in a June 1863 letter, after the arrest of Rep. Clement L. Vallandigham (D-Ohio).

The congressman's arrest was military, not political, Lincoln insisted:

"His arrest was made because he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the Army; and to leave the rebellion without an adequate military force to suppress it.

"He was not arrested because he was damaging the political prospects of the Administration, or the personal interests of the commanding general, but because he was damaging the Army, upon the existence and vigor of which the life of the nation depends.

"He was warring upon the military, and this gave the military constitutional jurisdiction to lay hands on him."

US Military Could Legally Arrest Dissident Lawmakers Today

Warring upon the military: Lincoln's words apply to some lawmakers today, but even the most bitter of them insist that they're doing it to "support the troops."

The law might allow the US military to arrest lawmakers who undermine military effectiveness or morale while in a theater of war. In considering the Lincoln-era arrests of treasonous congressmen, the Supreme Court ruled the arrests illegal because the politicians in question lived outside the war zone at the time of their actions.

Rhode Island Chief Justice Frank J. Williams, a scholar of the Lincoln era, has been mulling the question of such arrests and their applicability today. He studied the case of Rep. Lambdin P. Milligan (D-Ind.), a Copperhead who had tried, in solidarity with the Confederacy, to discourage enlistments after Lincoln called for raising troops in 1862. [Feb 2007 note: The reference to Milligan as a Member of Congress is incorrect. He was not a congressman.]

The Army arrested Milligan in October 1864. A military commission found him guilty of inciting insurrection and giving aid and comfort to the enemy in time of war, and sentenced him to be hanged on May 19, 1865.

"Condemned to hang, he invoked the habeas corpus writ," says Williams in a recent essay. "But by then the war was over, and the Court was prepared to act boldly. It ruled that Indiana, where Milligan resided and spoke, was not part of the 'theater of war' and that the civil courts there were 'open' and therefore available to conduct his trial. Under such a combination of circumstances, the writ could not be constitutionally suspended. The Milligan case, needless to say, has become the source of permanent consternation to the friends of presidential power."

Nearly a century later, Chief Justice Earl Warren called the Milligan case a "landmark" that "firmly established the principle that when civil courts are open and operating, resort to military tribunals for the prosecution of civilians is impermissible."

When Is It Legally Permissible to Hang a Member of Congress?

Modern scholars express little doubt about the legitimacy of the Milligan conviction. The issue is the authority of the military to do the arresting and prosecuting.

According to Williams, the Milligan case "establishes the principle that the courts shall determine, even to the point of overriding the executive, what is the area of war and public danger, a principle that could well cause havoc with presidential effectiveness in an actual emergency."

Politicians feel freer to use more extreme rhetoric against the war on terrorism now that they have political cover from elders such as Sen. Edward M. Kennedy (D-Mass.) and left-wing moneybags such as George Soros, who calls Bush more dangerous than the terrorists and has pledged millions to bring him down [see "Soros Resolves to Bring Bush Down," Dec. 9-22].

As the war debate deteriorates from principle and practicality to partisanship, the once-important intolerance toward uttering words that comfort the enemy also is deteriorating [see "Hillary Rodham Clinton and the Disloyal Democratic Opposition"].

Can Lawmakers Be Trusted to Police Their Own Behavior?

Combine that with the by-any-means-necessary approach to using the Senate Intelligence Committee as a partisan bludgeon and the question arises as to whether lawmakers can be trusted to police their own behavior.

Public censure long has been a tool that responsible legislators have wielded to punish or deter bad behavior from within their own ranks. The House and Senate have censured and expelled some of their more wayward colleagues, even invalidating their elections, but apart from the Civil War period such measures generally were reserved for financial corruption and sex crimes.

In the 20th century, no lawmakers had action taken against them for behavior that may have lent aid and comfort to the enemy, according to Herbert Romerstein, a veteran congressional investigator and a historian of subversion in the United States. "Vietnam is the only time it comes to mind, and though there was widespread support for the enemy, nobody was punished." Probably because the war had not formally been declared.

Sen. Leahy Punished as a 'Suspected Leaker'

However, there were and are established precedents to punish lawmakers who reveal classified information. The most prominent, though largely forgotten, case is that of Sen. Patrick Leahy (D-Vt.), who was accused repeatedly of revealing sensitive secrets in interviews with reporters, including leaking stories about US intelligence intercepts of conversations of foreign leaders.

In 1986, Leahy, then vice chairman of the Intelligence Committee, let an NBC reporter read a secret draft report on the emerging Iran-Contra scandal. The committee spent a half-year investigating and forced Leahy to resign from the panel.

It was perhaps the most serious breach in the committee's decadelong history, and it wasn't Leahy's only offense. He was long a suspected leaker of national-security secrets as part of his effort to discredit the Reagan administration and its policy of rolling back Soviet communism.

The problem was the Senate Intelligence Committee leadership had no proof. Insight has learned that staffers on the committee set up a sting operation against Leahy to catch him in the act. In compiling documents for each senator on the committee, staff members made small alterations in the numbered copies reserved for Leahy, marking the text in small ways that would, if leaked, prove the identity of the leaker. The sting worked, hastening Leahy's exposure and resulting in his being forced to leave the committee in disgrace.

Like the United Nations, the current Senate appears unwilling to enforce its own rules and resolutions on security matters. The Republican response to the Intelligence Committee memorandum is proof of that, critics say, even though the committee's Rules of Procedure require immediate action in such cases.

According to section 10.8, "The Committee shall immediately consider action to be taken in the case of any member of the Committee staff who fails to conform" to committee rules. "Such disciplinary action may include, but shall not be limited to, immediate dismissal from the Committee staff."

Meanwhile, of course, the Democrats are trying to make a criminal case of the GOP "theft" of the memorandum proving their plot against the war effort.

J. Michael Waller is a senior writer for Insight magazine.

Note on Sources: Given the recent controversy about the authenticity of quotations attributed to President Abraham Lincoln, Insight went directly to the primary source for the presidential statements about how to deal with congressmen who sabotage the war effort. This reporter found the quotes in a June 1863 letter that President Lincoln wrote, published that year in pamphlet form as "The Truth from an Honest Man: The Letter of the President," by King & Baird Printers in Philadelphia and distributed by the Union League. Insight thanks Herbert Romerstein for providing the original pamphlet from his collection.For more on this story, read "U.S. Congressmen Convicted of Treason" and "Hillary Rodham Clinton and the Disloyal Democratic Opposition."