'There is no other word for it:' Former Bush ethics czar says FBI uncovering evidence of treason

[Oak2004]

55. I am not sure that a declared war is necessary

A hypothetical: suppose a traitor conspires to aid a foreign power to conduct a sneak attack against the United States. Would it be reasonable for their defense attorney to argue that, yes, my client absolutely did that, but since there was no declared war at that moment in time, my client is innocent?

"Levying war" requires a common sense understanding. A declaration of war rarely precedes a modern act of war, and often is not even sought anymore. War in the modern era is not a slow process conducted by horse and sailing ship, in which both parties have weeks or months to make their declarations and bring their forces to a prepared battlefield. Wars can start with surprise attacks. They can be conducted by or against non state actors. A war can be initiated and over in 20 minutes, though we all hope never to see such a war.

One of the forms a modern act of war can take is information warfare. An international consensus has formed around the idea that a cyberattack that threatens the survival of a nation and its duly constituted government is an act of war. In such a case it is possible that a act of war might not be detected for months, or even years, after an initial attack -- making it impossible for even the most ardent Constitutionalist to obtain a Declaration of War from Congress until long after war had begun, perhaps not until the war was effectively over.

The only sensible meaning of "levying war" here has to be activities pursuant to an act of war, whether or not Congress had formally declared that war. This attack, which was aimed at damaging or destroying our democracy, fits the emerging understanding of an act of war.

There isn't a lot of case law when it comes to treason. It is understandably a rarely used statute. What little there is includes cases where no declaration of war had occurred.

Absolutely more than one charge could and should be brought here. I'm seeing criminal conspiracy, economic espionage, RICO, money laundering, as obvious charges. But none of those,alone, address the real crime here, which is an attack, not on a server. nor funny business with money, nor any of the other charges. This was an attack on our nation and the principles which define us. Nothing short of treason articulates the nature of this crime.

I would not worry about the listed penalties. They are the minimums. The maximum is death. I would be astonished to see a judge sentence a convicted traitor to anything less than life.