Duda - If this be treason: the American rogues and rebels who walked the line between dissent and betrayal

This is the debut book for Jeremy Duda, a thirteen-year veteran of print journalism and an award-winning reporter in the world of Arizona politics and government. At the Arizona Capitol Times , which is widely regarded as the premier source of political news in Arizona, he has spent more than six years covering the governors office beat and other political stories. He has a proven record of breaking high-profile news stories and scooping much larger competitors, developing sources deep inside the often-murky world of politics and government, and providing some of the most comprehensive and insightful reporting on state politics and government. He lives in Phoenix with his wife, Robyn.

To Robyn, my partner in life, whose love, support, and encouragement helped make this book possible.

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Copyright 2017 by Jeremy Duda

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If this be treason, make the most of it.

ATTRIBUTED TO PATRICK HENRY

LEGEND HOLDS THAT PATRICK HENRY, WHEN ACCUSED OF TREASON BY HIS colleagues in Virginias House of Burgesses for implying in a speech against the Stamp Act that King George III should be assassinated, proudly replied, If this be treason, make the most of it.

Modern historians believe that Henry did not actually utter those famous words, though the myth, if that is indeed what it is, has lived on for more than 250 years as a testament to his passion for liberty. Contemporary observers wrote that Henry parried the accusation against him with an insincere apology to the slighted king, which was enough to calm the nerves of his startled colleagues.

The exact location of that line, separating dissent, disloyalty, and defiance from outright treason, has been difficult to discern ever since.

Treason is the only crime explicitly defined in the Constitution of the United States. Article III, Section 3 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. Relatively few Americans have actually been punished for violating those twenty-four words.

Far more common have been those who had the poisonous word hurled in their faces for acts that, while not treasonous, were perilously close to that line, or at least viewed as such by many of their fellow Americans. For those who make such accusations, treason is not necessarily the crime defined in Article III. To them, it is more like Supreme Court Justice Potter Stewarts famous definition of obscenity: I know it when I see it.

But where exactly is that line?

Was it somewhere along George Logans voyage to France, as the Philadelphia doctor aroused the wrath of the ruling Federalists by striving to keep his country out of war? Perhaps it stood before the negotiating table at Guadalupe-Hidalgo as Nicholas Trist defied his presidents orders so he could salvage the least dishonorable peace treaty he could forge with a vanquished Mexico.

Most certainly that line stood between Richard Nixon and the South Vietnamese as he secretly undermined Lyndon Johnsons last hope for peace in order to clinch his election as president. It may well have been at the National Security Council as Oliver North and John Poindexter defied Congress to ensure that the Nicaraguan Contras could continue their fight against communism. And for Daniel Ellsberg and Edward Snowden, Americas greatest whistle-blowers, it unquestionably stood between the secrets they knew and the newspapers they revealed them to.

Some crossed the line out of love of country, to do what they truly believed was in the best interests of their fellow Americans. Others found that they had crossed the line by doing nothing more than subscribing to unpopular views, such as those who fell victim to the Sedition Act, Espionage Act, and the excesses of McCarthyism.

Still others crossed it for nothing more than personal gain. One would be hard-pressed to argue, for example, what good William Walker could have believed he was doing for his country when he subverted its laws and foreign policy to become the conqueror of Nicaragua.

The Founding Fathers withheld the power to define treason from Congress by design. They knew that leaving the Congress to define the greatest crime one can commit against his or her country could have dire consequences for the rights of the citizens of their fledgling republic. Congress may decide how to punish treason; it may even word the laws against it as it desires. But the ceiling was set by Americans who knew how easily the crime could be abused by the government.

James Wilson, a delegate to the Constitutional Convention of 1787, thought it prudent to define treason narrowly and to prevent Congress from expanding it further in order to safeguard the peoples liberty. If we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason, he told the convention. Wilson recalled that some very remarkable instances of the definition of treason have occurred, even in so free a country as England. In one of those instances, Wilson said, a man had wished death on the unknown person who had killed his favorite buck, only to later find that the perpetrator was the king. For wishing the kings death, the man was convicted of treason. I speak only of free governments, for in despotic ones, treason depends entirely upon the will of the prince. Let this subject be attended to, and it will be discovered where the dangerous power of the government operates to the oppression of the people. Sensible of this, the Convention has guarded the people against it, by a particular and accurate definition of treason.

In The Federalist No. 43, Madison praised the conventions work in narrowly defining the crime of treason. As treason may be committed against the United States, Madison wrote, the United States must be empowered to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

Certainly there are those Americans who have committed actual treason against the United States, but their numbers are few, and they are subjects for another book. The purpose of If This Be Treason is not to examine their lives, their crimes, or their fates. Nor is it the purpose of this book to debate the wisdom of policy. Probably every president from George Washington to Barack Obama has been called treasonous for pursuing policies their critics thought detrimental to the well-being of the United States and its citizens. I will leave it to the partisans to decide such questions for themselves.