The U.S. Constitution defines “treason” as follows (Article III, Section 3):

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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.

It’s not the only possible way of defining treason, but it’s the legally accepted definition of treason in the United States. Treason is a crime, and like all crimes, those accused of it enjoy a presumption of innocence until proven guilty in a court of law. Since it’s a capital crime, punishable in principle by death, the presumption of innocence matters even more than it ordinarily would, not that the presumption is any less applicable to non-capital crimes.*

There is something deeply wrong with a discursive culture in which accusations of treason can be made on the basis of unsupported “suspicions” based on rumor or innuendo. To make an unsupported accusation of treason is to invite one in return.  If an accusation of treason can be made on the basis of rumor, anyone can be accused with impunity. If anyone can be, lots of people can be. But when lots of people accuse one another of capital crimes, we’re setting ourselves up for disaster. A cascading series of such accusations is essentially a recipe for a civil war.

I find it both depressing and amazing that The New York Times published a column yesterday that half-accused Donald Trump of treason on the basis of what the author concedes are unsupported assertions. It’s hard to see how this is all that much better than Trump’s comments on the Central Park Five or Bowe Bergdahl.

The fundamental question now isn’t about Trump’s lies, or intelligence leaks, or inadvertent collection of Trump communications. Rather, the crucial question is as monumental as it is simple: Was there treason?

We don’t know yet what unfolded, and raw intelligence is often wrong. But the issue cries out for a careful, public and bipartisan investigation by an independent commission.

“There’s a smell of treason in the air,” Douglas Brinkley, the historian, told The Washington Post. He’s right, and we must dispel that stench.

I agree that Trump should be investigated. I’m not averse to raising or debating the question whether he committed treason. But I don’t think accusations of “treason” should be made in metaphorical form, as vague innuendos, in advance of an investigation of the matter. (Recall Darryl Gates’s notorious claim back in 1990 that casual drug users were traitors who ought to be shot–because after all, we’re in a war on drugs…) There is as yet no hard evidence to indicate that Trump committed treason. That fact is a lot more obvious than the truth of any accusation of treason against him. If so, we should tread warily when it comes to accusations or innuendos of treason.

To be fair, I’ve raised the issue of treason myself in a different context, that of Americans with dual Israeli citizenship who join the Israeli military or security services, are deployed to East Jerusalem or the Occupied Territories, and then shoot at American citizens there under the orders of Israeli commanders. From a Facebook post I wrote on March 2 (commenting on this article):

American liberals like to make a big deal about Trump’s problematic hand-holding and ass-kissing when it comes to Russia: “treason,” in fact, is the word they like to use for it. I don’t dispute the need to make a big deal of Trump’s dealings with Russia (I do dispute the over-use and mis-use of the word “treason”), but how much moral standing do such liberals have if liberal politicians like Andrew Cuomo are engaged in essentially the same activities vis-a-vis Israel?

If you really want to approach the vicinity of “treason,” try this on for size: Name one country besides Israel that permits American citizens to serve in its military and then shoot at other American citizens at the discretion of a foreign military commander.

Not Russia. Israel does it, and has done it for decades–with American help. American citizens serve in the Israeli army, which operates in the West Bank and enforces the siege of Gaza. Israeli commanders have the power, at their discretion, to order any Israeli soldier to shoot at anyone in either place. But “anyone” includes the Americans there (and there are Americans there: I’ve been one of them).

When I say Israel has done this “with American help,” I don’t just mean “U.S. government help.” I mean: it does that with the help of supposedly well-meaning American Jews who have dual Israeli-American citizenship, and have no problem at all in signing up with the Israeli army, serving in it, “operating” in Occupied Palestine–defending the settlement enterprise there– and regarding themselves as defenders of “Western Civilization” in the bargain. As is well known, many of The New York Times’s correspondents in Israel have sons or daughters who serve in the Israeli military. But we’re somehow to believe that that fact has no bearing at all on their coverage of the Israeli army’s actions in Palestine.

I regularly encountered Americans staffing the checkpoints between Israel and Palestine when I was in Palestine, and regularly (to put it mildly) encountered Americans in the West Bank settlements, armed to the teeth against their (largely unarmed) Palestinian neighbors, and ready to kill them at the least provocation. I was never intentionally provocative in their presence, but if I had been (in their eyes), they’d have shot me dead. Not a problem? Ask Tariq AbuKhdeir. (Or look him up if you’ve never heard of him.)

For that matter, ask Elor Azaria. Azaria wasn’t an American, but consider a thought-experiment: what if he had been?

Constitutionally, “treason” consists in an American’s levying war “against the United States.” I’m not sure that it’s precisely treason to levy war against an American citizen (rather than against the United States as such), but it comes a lot closer than anything that Trump has done, or has been alleged to do when it comes to Russia. Nonetheless, our liberals, loud in righteous indignation against Trump, maintain a discreet silence about Israel. It’s easy enough to rail against Trump from inside a liberal echo chamber. Not so easy to criticize Israel anywhere in the United States–when every sign of resistance is castigated as anti-Semitism.

So, yes, I’ve raised the issue of “treason” in a speculative context. The difference between Kristof’s speculations and mine can be put this way, however:

1. I was discussing an act-type, not a person.
2. I raised the question whether the act-type approximated treason; I didn’t categorically assert (or insinuate) that it was a case of treason.
3. I explicitly noted a reason for wondering whether the act-type really was treason (by raising the possibility that the act type failed to satisfy the criterion of being an act of war “against the United States.”)
4. The speculative element in my post was very limited. It is a fact that American Jews can acquire dual American-Israeli citizenship. It’s also a fact that they can join the Israeli security services. Once they join, it’s a fact that they can be deployed in the Occupied Territories, and once deployed, it’s a fact that they can shoot at Americans. Finally, it’s a fact that members of the Israeli security forces have beaten or killed Americans in the past. Given the preceding, it is possible in principle for Americans to be shot at, beaten, or killed in the future by soldiers or police officers with dual Israel-American citizenship. Given that real possibility, I think it’s legitimate to ask whether the possibility, if actualized, would amount to treason or something like it.

There’s a famous quotation of Nietzsche’s, in Beyond Good and Evil, to the effect that those who fight monsters should look to it not to become monsters themselves. In fighting the Trump monster, it seems to me that Trump’s critics are starting to reach the point of self-monsterization. Probably time to stop before it goes too far.

*James Madison on treason in Federalist 43:

As treason may be committed against the United States, the authority of the United States ought to be enabled 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.