"In my defense... I saw 'Bring It On'..." -Anonymous Board Writer
Question #88823 posted on 01/30/2017 9:34 a.m.
Q:

Dear 100 Hour Board (Zed specifically),

I doubt this comment would make it into the correction for Board Question #88472 (Russian Election Hacks), so I am posting it as a question.

TL;DR : Since Trump and his campaign did not commit an act of war against the United States, nor did he aid and give comfort to her enemies, he did not commit treason against the United States.

Now the argument.

Even if the Trump campaign directly colluded with Russian Intelligence to produce the materials disclosed in the DNC hack and the Podesta hack, it could not be defined as treason. As formally defined, "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." US Constitution Article III Section 3. Furthermore, federal law spells out some additional clarifications on what constitutes treason, defining it as "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason..." 18 U.S. Code § 2381.

The Supreme Court ruled that an act of war is necessary for the definition of Treason to apply. "If war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war." Ex parte Bollman, 8 U.S. 126 (1807).

More recently, in 1945, the Supreme Court tackled another treason case and clarified the nature of the crime of Treason:

"Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Cramer v. United States, 325 US 29 (1945).

To make the claim that Trump aided the enemy in a treasonous manner, you would have to establish that he committed an overt act (i.e. actually participated in the hack, or disclosed security vulnerabilities to assist in the hack) against the United States (in this case, a member of its government) in a specific effort to levy war against the US or to subordinate it to a foreign power by duplicitous means. I assert that this cannot be done.

1) Did the hacks constitute an act of war against the United States? Outside of a state of declared hostility or war between the US and another nation, an attack not specifically directed against government/military/physical infrastructure doesn't fit the definition of levying war. At the moment, acts of data theft are only considered espionage - for an attack to be possibly considered an act of war, actual physical damage has to occur (see the Stuxnet attack against Iran). Considerable data thefts have taken place previously (China against Google, reportedly North Korea against Sony, etc...). Given that the US nas not declared war in response to these attacks, it could be argued that no levying of war has occurred on either side. Espionage and perhaps terrorism, but not war specifically. Furthermore, as stated above in ex parte Bollman, the levying of war requires an "assemblage of persons for the purpose of effecting by force a treasonable purpose". Ex parte Bollman syllabus, see 8 US 75 (1807). Without the application of force - or the threat of force, there is no war. Since the only direct damage was data theft and not force or even the threat of force, no acts of war occurred during the execution of the hacks.

2) Did the hack happen against the United States as an entity? I again assert that it did not, as the target of the hacks were the offices of the Democratic National Committee which, while a political organization containing members who were officials of the government, didn't actually constitute the government in and of themselves, but were a private organization. Similarly, this also applies to John Podesta, a private citizen advisor of a private citizen (Clinton) candidate for the office of the president. Yes, the hacks were illegal, but they were not treasonous as they did not happen against the United States government in and of itself.

3) Did the Trump Campaign actually a) perform the hack or b) disclose vulnerabilities that permitted the hack to happen? According to all accounts of the hack, including the report published by the intelligence community, they did neither. You may argue that Trump encouraged the hackers publicly and leveraged the information dumped, but without having some hand in planning or executing it, you can't argue that he did anything illegal. See Cramer above at 325 US 1 (1945), specifically where a citizen can publicly favor the enemy without actually doing anything to aid them.

So stop inferring that the hacks constituted treason. Whether or not you voted for him (I did not, personally), it's the wrong term and can be used only as inflammatory rhetoric. Use another line of attack, if you must, but leave treason off the table.

(As a side note, I marvel that no one - including the Clinton Campaign - disputes that what was actually in the leaked emails was accurate, specifically evidence of collusion against the Sanders campaign and other notable incidents of outright corruption. It reminds me of a toddler caught with her hand in the proverbial cookie jar.)

-Legal Nit-Picker

A:

Dear LNP,

Thanks for the tip-off. Before you wrote in, we were convinced that Board Question #88472 was about YSA stakes not associated with colleges/universities, but based on your question, we now have reason to believe that it is actually a coded message concerning attempted Russian hacking of the 100 Hour Board, and Kirito's response is his secret reply to the would-be hackers. We are launching an investigation right now, and let us tell you, it is going to be thorough.

Kirito, if you're reading this, clear your schedule for the next month. We have a few things we want to talk to you about.

-The Super Extra Secret Board Secret Police of Secret Secrecy

A:

Dear you,

That's a good point; I hadn't looked at the specific definitions of treason. I will note that acts of cyber aggression haven't been well-defined as far as what constitutes an act of war. I remember some controversy over this with the whole Ukraine thing a few years ago.

Also, a point to your next question - when Watergate happened, nobody cared about what Nixon found. They just cared that it happened. The fact that the hacks turned up real, damaging information is not, in my opinion, the point. Every politician has some dirt that could be dug up on them. The fact that the hacks happened is more important, in the grand scheme of things.

-Zedability