President Donald Trump’s performance in Helsinki, standing next to Russian President Vladimir Putin, was many things. Infuriating. Embarrassing. But the one thing it was not is treasonous. And the hacks calling it treason fall into two categories: those who don’t understand what treason truly entails, and those—like former CIA Director John Brennan—who do, but hope others don’t.
I used to say that when President Barack Obama said “let me be clear,” he was about to tell a lie. But really, let me be clear. The argument here is in no way defending Trump’s statements. They are, to me, indefensible. But the reactions to his statements are over-the-top. Not content to merely condemn the president of speaking stupidly, the left smells blood in the water and is pressing its treason accusations as far as it can. This has to stop.
Treason is narrowly defined
Treason was the second topic I wrote about when I joined ClearanceJobs last summer. I won’t rehash the discussion of the history of how treason came to be defined in the U.S. as it is. But I’d encourage you to follow the link and look at last year’s entry. But I will borrow one passage from that article.
Treason is the only crime defined in the Constitution. 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.” It adds, “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.”
Like it or not, Russia is an adversary, not an enemy. In order to give “aid and comfort” to the nation’s enemies, you have to understand what makes someone else an enemy. Perhaps it’s because only one percent of the population has served in the military in the last 20 years, or that only 10 percent are veterans at all, but the average social media commenter has no idea what the term means.
Luckily, there is a legal definition. Section 2204 of title 50 of the U.S. Code, in subsection 2, defines an enemy as “any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States.”
I have quoted before from Gen. Mark Milley’s discussion of the global security situation at the National Press Club a year ago. At the luncheon, Milley, the Army’s chief of staff, said, “Russian military capability is significant, and in fact is the only country on earth that represents an existential threat to the United States.” But he made it clear that Russia is not an enemy. “For people like me in uniform, ‘enemy’ has a very specific definition,” Milley cautioned. “And that is a group of people or nation states that are currently engaged in armed conflict.”
He added “Sometimes words like that get used too loosely.” This would be one of those times. We simply are not at war with Russia.
Others argue that Russia’s cyber attacks constitute hostilities sufficient to rise to the level of hostilities. This interpretation is wrong, too.
Cyber attacks are not yet acts of war
The cyber domain is undoubtedly part of the battlespace. The Army’s Multi-Domain Operations concept (recently updated from Multi-Domain Battle) makes that clear. But I’m sorry to disappoint: acknowledging that future conflict will involve the cyber domain is not the same as saying that cyber attacks constitute an act of war.
In 2011, Pentagon officials first announced that they are working on a policy that would classify certain cyber attacks that way. The Defense Department’s Cyber Strategy was supposed to include those criteria. But when the strategy debuted in 2015, those details were notably absent.
Congress and the DoD thoroughly explored this area in a June 2016 hearing. In response to a question from Rep. Tulsi Gabbard (D-Hi.), Thomas Atkin, then the acting assistant secretary of defense for homeland defense and global security, said, somewhat awkwardly, “I say specifically to your question, what defines an act of war, I think is what your question is regarding the cyber act. That has not been defined, we’re still working towards that definition across the inner-agency.”
Officially, the DoD is no close to defining what level of cyber attack would constitute an act of war. But every discussion of what might constitute such an act involves discussion of attacks of critical infrastructure. This also has a specific definition. According to the Department of Homeland Security, critical infrastructure comprises the “essential services that underpin American society and serve as the backbone of our nation’s economy, security, and health.”
The department lists 16 critical infrastructure sectors. You know what’s not included among them? Servers belonging to political parties or presidential campaigns. Hacking the servers at the Democratic National committee and the Democratic Congressional Campaign committee, and the private emails of several Hillary Clinton confidants, was a nasty, criminal act. That’s why Special Counsel Robert Mueller handed down indictments last week. But they’re not “hostilities.”
To further illustrate this point, in 2014, the Chinese government hacked into the servers of the Office of Personnel Management and stole the personal information of 18 million people—including me—who had applied for security clearances. This information included not only the basic “personally identifiable information” like social security number and address. The SF-86 used for applying for a clearance includes every applicant’s addresses for the previous 10 years, the names and addresses of their direct relatives, information on their schools, every employer in the past 10 years, and often credit card and loan information. It’s a treasure trove not just for identity thieves, but for spies looking for leverage.
If stealing that information from a government server isn’t an act of war, then stealing John Podesta’s emails certainly isn’t an act of war.
A huge setback for Trump’s credibility
Despite the fact that his words did not rise to the level of treason, Helsinki was not Trump’s finest hour, to say the least. It’s probably the low point of his presidency. National Review columnist David French said what I and many others had been thinking: the press conference was the president’s foreign policy equivalent of his post-Charlottesville “good people on both sides” comments. They were undignified and morally repugnant.
Yesterday, I acknowledged that the U.S. has, in the past, engaged in our own election meddling. But make no mistake, I said that to provide context that spies do what spies do. In no way was I suggesting that it was something we had to accept passively. For the president to make the same kind of comparison on the world stage boggles the mind.
Trump had the opportunity to stand up to Putin and confront Russia’s international aggression, not just against the U.S., but in Crimea, Donbass, Georgia, and Syria. While we don’t know what the two discussed behind closed doors, the president did not mention any of those publicly.
That is to his own detriment, not to mention that of the United States. But please, stop calling it treason.
