Why Pro-NDAA Lawmakers for Military Detention of U.S. Citizens Are Guilty of Treason.

In the outcry over the codification of the Fourth Circuit Appeals Court's decision to uphold the president's power to hold American citizens in military detention indefinitely, without charge or trial, it is common to hear the word "treason."  Since constitutionally sworn officers are sworn to "protect and defend" the "United States Constitution" from "all enemies, both foreign and domestic," it would seem follow that betrayal of that oath, i.e. overturning a central part of that Constitution, the Bill of Rights, would constitute treason against the Constitution.

The legal definition of "treason" is "[betrayal], treachery, or breach of allegiance."   The American oath is a statement of allegiance which makes no mention of any foreign powers, defense of territory, or defense of institutions.  It is a statement of allegiance to the Constitution and the Constitution alone.  The Oath  of Office of the U.S. senator and congressman, required by the  Constitution before assuming duties, as well as any American military  officer, is:

"I do solemnly swear (or affirm) that I will support and  defend the Constitution of the United States against all enemies,  foreign and domestic."

However, there are some who object to the words "traitor" and "treason" when applied to the senators and congressmen who voted for the NDAA, citing Article 3 of the Constitution:

"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 Oath required to be sworn by by the Constitution makes provision for defending the Constitution (and nothing else) against "enemies both foreign and domestic."  So there is nothing limiting those enemies who "levy war" to foreign powers, as the "enemy combatant" doctrine acknowledges.  This doctrine states that enemies of the United States can be either U.S. citizen or non-citizen.

    The question then becomes can those who seek to overthrow a central part of the Constitution, the Bill of Rights, be considered guilty of treason?  The Constitution can be legitimately changed only by Constitutional Convention.

Given the clear affirmation in the founding document even more primary than the Constitution, the Declaration of Independence, that the government is "instituted" to "secure these [unalienable] rights," of which right to a jury trial is one, I would argue yes.

This passage of the Declaration is so beautiful, concise, and comprehensive that it always bears reproduction in full:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.That  to secure these rights, Governments are instituted among Men, deriving  their just powers from the consent of the governed, That whenever any  Form of Government becomes destructive of these ends, it is the Right of  the People to alter or to abolish it...  --  Declaration of Independence as originally written by Thomas Jefferson, 1776."

The Supreme Court declared in 1897:

The Constitution is the body and letter of which the Declaration of Independence is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. The Constitution itself connects itself to the Declaration of Independence by dating itself from the date of the Declaration of Independence, thereby showing clearly that it is the second great document in the government of these United States and is not to be understood without the first.

   In other words the securing of these rights is not a tangential function of the government.  The Founders made clear that the securing of these rights are the main reason for the government's very existence.  
Thomas Jefferson said of the jury trial:

       "I consider trial by jury as the only anchor ever yet imagined by  man, by which a government can be held to the principles of its  constitution."

The adjudicated wartime powers now being codified have never been put to the test in the Supreme Court.  Yasar Hamdi in Hamdi v. Rumsfeld was decioded in the U.S. Supreme Court, but carried the crucial difference that Yasar Hamdi was captured in Afghanistan, arguably behind true "enemy lines."
You don't need to be a meteorologist to know if it's raining outside, and you don't need to be a constitutional scholar to know that permanent wartime powers amounts to the overthrow of the Bill of Rights of the US Constitution.  Treason.

Common sense alone says you might have unlimited powers in a war of limited duration, or you might have limited powers in a war of unlimited duration, but the plain language of the Constitution tells us you cannot have both: unlimited powers in a war of unlimited duration.

This is the question which has been ignored since 9/11, and which the Fourth Circuit Appeals Court left for the Supreme Court review that never came.   The war on terror is the first war which by definition has no end, in which the "enemy" is an amorphous network rather than the kind of military hierarchy we have opposed in every previous war.  This is the first war in  which there is no one from whom to accept surrender.  Declaration of a war as a "task which does not end," as George Bush said to a joint session of Congress on September 20, 2001, is a ruse which should have resulted in charges of treason the moment it was uttered.  The import of unlimited wartime powers in a war of unlimited duration has not changed.  It constitutes Treason.

[MODEL RECALL LAW, WASHINGTON STATE CONSTITUTION ARTICLE I.]

The Treasonous 383
SENATE: YEAs ---86
HOUSE: AYES 283 --

RELATED POST: "Why a Constitutional Law Professor Should Not Sign an Unconstitutional Military Detention Bill"