“SABOTAGE” when against Trump but not against Clinton? Let’s Try for Treason

Politico 1/11/17

The generally unbiased reporting from Politico seems to have turned toward propaganda with this story by Kenneth P. Vogel and David Stern. I have here on Medium used the word sabotage in connection with the purported cyber attacks of the DNC. Through various side channels I have attempted to galvanize to no avail editors around the country to familiarize themselves with the legitimate usage of this almost antique sounding word.

Yet I have not seen that word employed regarding the Russian hacks. It is a good word and has its place. And the Russian cyber attacks are a good context in which to apply this word.

The word has its origins in the French. Sabots were wooden clogs and disgruntled French workers would throw their sabots into the machinery to impede production. But it wasn’t until World Wars I and II that American legisators began using the word in connection with enemy agents within the US. A classic Hollywood treatment of sabotage can be found in Hitchcock’s Saboteur (1942).

Technical use of the word has profound significance within a political context. An enemy agent guilty of sabotage can be executed. An American guilty of political sabotage is also guilty of treason if that sabotage is on behalf of a foreign state. The implications of the word are serious. And so its use in any legal sense has been to date constrained.

In my view, the press has been overly cautious in this. Clearly if USIC (collectively, the 17 US intel agencies) has concluded that the Kremlin directed a cyber attack against the DNC with the intent of disrupting and perverting the American election process, this is clearly a case of sabotage.

However, if committed by Russians it is hard to prosecute individual actors.

There is another, related, term that comes to mind in this connection: treason.

In the US Constitution Art. III it is identified as follows:

“Treason against the United States shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort.”

And in the US Code similarly:

18 U.S. Code § 2381 “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 and shall suffer death, or shall be imprisoned not less than five years.” *

The main question is: Is Russia an enemy state? We are not at war with Russia, but attacking important infrastructure may be considered an act of war. Russia has attacked critical infrastructure. The DNC is not government, that is true, but it is a very important part of the US political system, and any attack to either party’s assets jeopardizes the functioning of American politics. This is at the moment clearly self-evident. John McCain has characterized the Russian cyber attacks as an act of war. And that does raise the question whether a cyberwar has been implicitly declared. Warfare does not necessarily mean physical weaponry. (Bear in mind that the US and the USSR never fought, but the latter was during the Cold War clearly designated an enemy.) But does this de facto cyberwar qualify Russia technically as an enemy? The key phrase in the US Code above is “adheres to their enemies.” From the fact of the sabotage of infrastructure, Russia has declared itself an enemy of the US. It is not a gesture as cataclysmic as Pearl Harbor, but the intent, which can only be called insidious and harmful to millions of voters and to the integrity of the office of president, is deeply threatening to the political stability of America. The act itself is sufficient to earn Russia the title of Enemy of the State. If we accept the reasoning here, under US 18 above, anyone aiding Russia in this enterprise is committing treason. It now becomes a matter for the US Attorney General.

But of course there is a problem with that recourse. The new AG, Sessions, is possibly disinclined to prosecute his new employer.

The key issue here is what is the status of the DNC and what kind of object is the US political system. I think it can be argued that it is crucial infrastructure, though it is no one thing, and is not always a tangible asset. And the DNC, again, though it is not a department of state, it shares some of the same protections as for example a McDonnell Douglas or a Boeing or a Raytheon. It is part of the political system, and the political system is, for better or worse, a matter of national security. Simple logic: if the political system is corrupted and free and fair elections are prevented there is a fundamental threat to the “American way of life.”

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  • And there is misprision of treason: “Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.” 18 U.S. Code § 2382.

Assuming treason has been committed, this law has the power to bring to court anyone who knew that Russians were attacking the DNC’s assets and so perverting the political system.