What makes someone a traitor

He accepts the benefits of membership while at the same time harms his fellow community members: it is for this reason that his act of disclosure is presumptively wrongful — that is to say, that the burden of proof lies on his shoulder to justify it. It might be objected that this defense of the presumptive wrongfulness of treason does not properly account for the intuition that, at the heart of treason — that which makes it wrong — is a breach of loyalty.

For the objection continues it seems odd to say that individuals owe loyalty to their state because the latter confers benefits on them; and it seems even stranger to say that they owe loyalty to their fellow community members by dint of the fact that the latter contribute to the state providing benefits in this way.

Rather, they owe loyalty to their state because it is their state; they owe loyalty to their compatriots because the latter are their compatriots, period. Loyalty, on this view, is necessarily non-instrumental. Yet I contend it need not be so.

In institutional settings, in particular, loyalty can simply take the form of commitment and willingness not to undermine institutions which do well by us and, thereby, not to harm our fellow community members.

Treason is presumptively wrong in so far as it consists in a breach of loyalty so construed. As should be clear, the charge of treason — as the commission of a presumptively wrongful act — is context-sensitive to the extent that it is shaped by mutually understood expectations as to what agents are expected to do in fulfillment of their duties to one another.

Finally, on the account I have just given, acts of treason are presumptively worse than non-treasonous yet harmful acts, and some treasonous acts are presumptively worse than others. Footnote 22 On the first count, other things equal, it is presumptively worse of American Jake to pass on US secrets to the Chinese than it is of British Jake, to the extent that to repeat American Jake undermines the institutions thanks to which he benefits from social membership in the United States and on which his fellow Americans depend.

On the second count, suppose that Jake is a state official — say, he is working for the CIA. His wrongdoing is worse, other things equal. My account accomodates this. Footnote 23 Incidentally, my account also accomodates the following case.

Suppose that Jake is a CIA employee. He passes secret intelligence about to the US to China. Suppose further that, unbeknownst to him, US counter-intelligence services are fully aware of what he is doing. They choose not to arrest him but, rather, to manipulate him into feeding to China intelligence which the US administration regime wants China to have. Jake, thus, does precisely what US counter-intelligence services want him to do. However, it is still apt to describe his act as presumptively wrongful, in so far as he thinks that he is acting against the United States in defiance of the fact that he is understood to be under a role-based obligation not to disclose those secrets.

One final point about the presumptive wrongfulness of treason. As my three-pronged argument so far suggests, even treason against an unjust regime is presumptively wrongful.

The more unjust the regime regime, the weaker the presumption. But the presumption nevertheless stands, such that treason does stand in need of justification even in such cases.

We now have a handle on what treason is and why it is presumptively wrongful. To say that treason is presumptively wrongful is to imply that the presumption can be overriden by countervailing considerations. In this section and the next, I provide an account of those countervailing considerations. Footnote 24 The question is whether they are morally permitted to go one step further and to act against Blue by passing on official secrets about its policy to Red.

As a first and very rough cut, here is a simple analogy. Suppose that Albert becomes aware that his business partner Bob is planning unjustifiably to assault Innocent as part of their business venture.

It surely is not enough to say that Albert is morally permitted to get out of the business venture. The point holds of ordinary citizens who happen to have that intelligence in their possession.

Whilst the presumption against treason is stronger for reasons indicated in s. B for officials than for non-officials, it does not hold no matter what. Crucially, however, it does not follow from the claim that a member of Blue henceforth, Asset Footnote 26 does not wrong his fellow members by committing informational treason that he is morally permitted to do so all things considered. Before reaching the conclusion that he is, we must bear in mind the following considerations. First, Asset might have countervailing special obligations to third parties which are incompatible with committing treason.

Suppose that if Asset is unmasked as a traitor, his relatives will receive a ten-year sentence in a hard labour camp, which they are unlikely to survive. Suppose that the intelligence is useless. Or suppose that it is useful but that Red will use it to wrongful ends, or will not use it at all. For example, its services fail to realise how important it is. Or they do not trust Asset not to be a double agent — in the same way as the Soviet authorities apparently never fully trusted Philby.

Footnote 28 Or they lack the requisite analytic resources. Suppose further that Asset has very strong reasons to believe that such is the case. On the one hand, by disclosing official secrets to Red, Asset might be aptly described as engaging in an overall harmless, honorable act of rebellion against Blue.

On the other hand, by taking this particular step, Asset might be more likely to expose third parties to pointless risks of harms. Under conditions of epistemic uncertainty, the best that moral agents generally can do — indeed the least that they ought to do — is to ground those decisions in the beliefs which they have formed in the light, not just of the actually available evidence, but of the evidence which they can reasonably be expected to have acquired.

Under those conditions, we can say that Asset is robustly justified in committing treason. By implication, if Asset lacks the relevant evidence, he may not so act — even if for example Red would make morally justified use of the intelligence he would provide.

Therein lies an important difference between them. Therein, too, lies an important difference between ordinary citizens and officials: the latter are likely to have better access to the relevant evidence than the former.

Even though they are under a stronger presumptive duty not to commit treason than ordinary citizens are when things are equal, they are usually in a better position to overcome those epistemic obstacles and thus to act justifiably. Let me now address two important concerns one may have about my arguments thus far, drawn respectively from the works of David Estlund and the works of Youngjae Lee.

I should say at the outset that, on reflection, Estlund and Lee might both accept my central arguments: my discussion, thus, is not ad hominem.

It is however worth rehearsing those concerns, as they naturally arise from their works. Estlund does not dispute that an agent who obeys an unjust order would be guilty of wrongdoing. His point, however, is that fair institutions are always vulnerable to making honest mistakes, and that under the aforementioned conditions, an agent is under a duty to do wrong — and, by implication, is not at liberty to disobey.

In the context of informational treason, the argument applies to the officials of democratic states, who by dint of their institutional role are deemed to be under a special obligation not to divulge official secrets without authorisation, and who if Estlund is right are not morally permitted so to act even if they have overwhelmingly strong reasons to believe that their silence protects violations of fundamental rights.

By contrast, the officials of non-democratic states are in principle at liberty to disobey unjust orders. To be sure, fair and democratic procedures through which authoritative commands are issued have a kind of legitimacy which the decision-making procedures of a criminal gang lack — even a gang with all the institutional accoutrements of a state. Nevertheless, even in a democratic country such as the United States, where Congress must authorise the resort to war, such constraints can all too easily be skirted.

Footnote 31 Moreover, it is worth noting that in France, India and the UK all fairly robust democracies, all in the top ten military powers the authorisation of the legislature is not a necessary condition for waging war.

If anything, the point is stronger still when foreign policy in general, as distinct from war in particular, is at issue. Decisions to go to war at least are subject to some form of scrutiny — if not by the legislature, at least at the court of public opinion. Decisions to impose economic sanctions, enter into treaty negotiations, authorise arms sales and order incremental troop deployments — far less so.

Admittedly, the lower down the intelligence cycle officials are, the less robustly justified they are in committing treason, since the less confident they ought to be that they — rather than their superiors — are reaching the correct judgement. In brief: the state cannot fulfill the valuable functions which its members ask of it unless it is physically secure. It cannot enjoy physical security unless it, and it alone, has the power to make use of the required resources in general — and to control the resort to violence in particular.

It also echoes one of my own, earlier arguments, to the effect that the presumptive wrongfulness of treason partly lies in the fact that the traitor undermines the institutions from which he benefits and on which his fellow members depend. Yet, there are good reasons for thinking that, at least in some cases, it is morally permissible so to act.

Consider, for example, the enlistment by e. French and British citizens with the International Brigades in the Spanish Civil War, or the enlistment of French citizens with the Allies and against the Vichy regime.

If this is true, the charge of usurpation alone does not undermine the moral permissibility of informational treason. To this point, Lee, whose concern is with the moral foundations of the American criminal law of treason, might respond that it does not apply to a minimally just state such as the United States.

He might further note that even if treason under those circumstances is morally permissible, it still ought to be a criminal offense. Again, he might well be right. But my focus is on the morality of treason, tout court. Pending further objections to the contrary, thus, the case for informational treason stands. As I now argue, they are sometimes under a moral duty to do so — by dint of an obligation of Good Samaritanism. Suppose that you cannot get resources which you badly need and to which you have a right.

At the very least, I am under a duty not to prevent you from getting those resources, and in fact, in some cases, under a duty to give them to you. This applies to material resources — such as the basic necessities of life but also the resources we need to protect ourselves from unwarranted harm for example, guns. Moreover, the duty to protect someone from unwarranted harm takes precedence over duties we may otherwise have to those agents who cause the harm. Were I to obstruct your attempt to procure the relevant resources, or were I to fail to help you, thereby enabling my associates to pursue their wrongful ends, I would be complicitous in those end.

And that, I may not do. The following two cases bring these considerations to bear on the issue of informational treason:. He is in a position to download important information about the programme and to pass it on to Officer Red. In both cases, Asset is under a duty to Red to help the latter obtain the resources it needs — in this case, secret intelligence.

Were Asset to obstruct Officer Red by remaining at his desk, or to refuse to download and pass on the intelligence, he would be assisting Blue in the commission of very serious wrongdoings. I take it that one may not act in such a way as to be an accomplice in grievously wrongful ends. In the latter case, the duty is owed to both victims and rescuers when the latter are under a duty to rescue.

Generally, agents have rights against one another not to be impeded in the performance of their duties to third parties. And, relatedly, it might also be thought that Asset is under a particularly stringent duty so to act if he chose to occupy such a position. For example, I am not under a duty to go to the beach.

But if I go to the beach and notice a child at serious risk of drowning, I am under a pro tanto duty to try and rescue her. Had I stayed at home and heard that there was a child in trouble at the beach, I would not have been under a duty to e. Or suppose that I freely promise to do something for you which I am not under a duty to do. In so doing, I impose a duty on myself to help you.

However, agents can also be under a duty to help even if they have not chosen to put themselves in a position where they can help. Suppose that I am frogmarched to the beach at gunpoint. The fact that I did not choose to go to the beach does not imply that I am not under a duty not to help the child.

Furthermore, it is not always the case that agents are under a more stringent duty to help if they have willingly put themselves in a position to do so, than if they have not.

Suppose that I am frogmarched to the beach at gunpoint whereas you go there of your own accord. We are both in a position to save the child. Other things equal, the circumstances under which we got to the beach do not seem to make any difference to our duty to rescue the child. If I am right, any agent who finds herself in possession of secret intelligence the disclosure of which would stymie violations of fundamental rights is under a pro tanto duty to pass on that intelligence, thereby committing treason if she stands in a treason-qualifying relationship with the parties whose secret it is.

That said, the claim that treason can in principle be the means by which agents fulfill a general duty of assistance needs qualifying in the light of two considerations which, unfortunately, pull in opposite directions. On the one hand, treason is likely to be extremely costly to traitors. Yet there is a limit to the sacrifices we can reasonably expect putative Good Samaritans to incur for the sake of others.

There thus might come a point where the magnitude of the costs which a traitor would incur together with the likelihood that he would be found out and have to incur those costs exonerate him from a duty to betray.

Where to set the threshold for unacceptable costs is impossibly hard to establish — in the same way as it is impossibly hard to reach fine-grained judgements as to how much by way of taxes a well-off individual may be expected to pay for the sake of the needy. I surmise, though, that a high risk of being executed, tortured, or sentenced to a lengthy prison term does constitute too high a cost.

If I willfully and unjustifiably put your life at risk, and if you can save yourself by killing me, I am under a duty not to kill you in my own defence. A conviction bars the defendant from holding any federal office and carries the possibility of the death penalty. Most state constitutions include a treason provision similar to that in the U.

But state treason prosecutions are extremely rare—by most accounts, only three people have ever been charged with treason on the state level. This rarity is due to the fact that most treason threatens the nation, not merely one state. Treason doesn't apply to foreign nationals who don't owe any allegiance to the United States. However, it does apply to American citizens holding dual citizenship.

It also applies to aliens domiciled in the United States who owe a temporary allegiance to the country while living there. Because treason must be intentional, someone who unintentionally aids the enemy or is forced to by duress or coercion isn't guilty of treason. See The Defense of Duress. There can be no accomplice liability for treason; every participant is considered a principal. There are two ways to commit treason: levying war against the government or providing aid or comfort to the enemy.

Levying war isn't limited to formally declaring war. It includes any forcible opposition to the execution of a public law. Such "forcible opposition" ordinarily requires actual use of force by multiple people with the common purpose of preventing some law from being enforced. Weapons aren't always required; sheer numbers can be enough.

Merely conspiring to overthrow the government isn't levying war—there must be an actual assemblage of people who are ready and intend to use force. But see "Related Crimes," below. So, no person acting alone can be guilty of levying war.

Providing aid or comfort to the enemy covers a variety of actions, from providing financial assistance to harboring an enemy soldier. Any intentional act that furthers the enemy's hostile designs or weakens the United States gives aid and comfort to, and "adheres to," the enemy. Sympathy alone. Instagram Facebook Twitter Pinterest. This guest post is by Misha Burnett. He blogs about writing and publishing on his blog mishaburnett. You can also follow him on Twitter mishaburnett.

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