Publicizing America’s Persecution of African Americans is a Moral Duty, Not Treason
As Human Rights Defenders (HRD), we have a moral obligation to speak out against acts that violate human rights, such as government wrongdoing and impunity. In my personal opinion, it is important to bring these concerns to light because of the damaging influence it has on disenfranchised communities, such as African Americans.
Over the years, the US government has hired private security firms to surveil African Americans who protest police brutality.[1] It has militarized its police departments and trained them in global counterinsurgency tactics to intimidate Black communities who make public complaints about racism. The US has also used surveillance, monitoring, informants,[2] colluders and other illicit practices to classify Black activists and HRDs as a threat to national security. Its framing of Black activists and HRDs as a threat gives it imprimatur to criminalize dissent both domestically and abroad.
These tactics, according to Mian, are reminiscent of the Counter Intelligence Program (“COINTELPRO”). While some suggest the FBI has abandoned its use of the term ‘BIE’, Mian contends there are no signs that it has retracted the label it has given to African American dissidents.[3] Indeed, evidence reveals the US government still frames Black dissidents who are critical of law enforcement as violent, so that it can quell dissent.[4]
Can the Expressions I Make Against the US Government Abroad be Interpreted as Treason?
As a HRD who actively speaks out against the US government’s ill-treatment of African Americans while abroad, my research and activism got me thinking: Would the US government interpret my expressions abroad as treason?
What is Treason?
The Encyclopædia Britannica defines treason as crime of betraying a nation or a sovereign by acts considered dangerous to security.[5]
What is Aid and Comfort in US Treason Law?
According to Article III, § 3 of the US Constitution, “treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort…” However, in Young v. United States, the US Supreme Court clarified that “aid or comfort to the rebellion” should be interpreted in its hostile sense,[6] such as furnishing warships or giving secret intelligence relating to the strength, movements, or position of an army.[7]
Publicizing America’s Persecution of African Americans is a Moral Duty, Not Treason
Do American HRDs Owe Fidelity to the US if Abroad?
It is argued that “every individual owes fidelity and allegiance to the government under which [they] are living in return for protection which [they] receive from the government.”[8] The key word is “protection,” but, how it is defined in the eyes of international law? Protection or the Responsibility to Protect (R2P) entails a State safeguarding its citizens from “…genocide, war crimes, ethnic cleansing, and Crimes against Humanity.”[9] Yet, the Inquiry Commission found the systematic killing and maiming of unarmed Black people, who posed no threat of death or serious bodily harm to police or others, was so widespread that it constituted Crimes against Humanity.[10]
This raises the question as to whether an American HRD or activist residing abroad is permitted to pass on evidence of US human rights violations, if one has formed the belief that facts warrant disclosure, and does so on the basis of such belief.[11] Indeed, American HRDs often form and hold opinions, and draw public attention to human rights violations,[12] such as Crimes against Humanity, which the US government could interpret as a treasonable act. Yet, Philosopher Cécile Fabre contends that an individual is robustly justified to commit, what she refers to as permissible treason, if an individual acts on the basis of such belief.[13] To be sure, Fabre specifies there is a moral duty owed to both the victim and the rescuers when the latter are under a duty to rescue.[14]
This leads me to believe that American HRDs do have a moral duty to bring global attention to the human rights violations transpiring in the US[15] because the international community has a duty to protect and rescue.
Are American HRDs Committing Treason by Calling for the Nullification of Laws?
It has been suggested that an American could be charged with treason by calling for the nullification[16] or the repeal of law or amendments, such as the Second Amendment. Even if the US government argued that such may weaken its position militarily, this argument cannot stand, as the epidemic of gun violence in the nation indicates the Second Amendment may be interfering with protected rights, such as the right to life.
In Cramer v. United States, the Court said so long as a citizen commits no act of aid or comfort to the enemy, they are free to harbour convictions that may be at odds with the government’s policies and interests.[17] In other words, American HRDs can make speeches critical of the government or oppose its measures while abroad, so long as they do not adhere to the country’s enemy or have an intent to betray the US.
It is worth stating at this point that when the US enacts amendments that adversely affect human rights, it contradicts human rights through the conduct of its constitutional organs, thereby violating its negative duties.
Can the US Government Use Treason Laws to Silence a HRD’s Dissent?
In the 1700s, courts found “letters of advice and correspondence…to enable [enemies of the US] to annoy us or to defend themselves, written and sent in order to be delivered…” may constitute an overt act of treason.[18] However, I disagree with this law in part, as anything could be considered “correspondence” that “annoys” the US. Indeed, history is full of examples of individuals who spoke out against US injustice and persecution while abroad, like Frederick Douglass, James Baldwin, James Meredith and Marian Wright to name a few.
“The American people have this to learn: that were justice is denied, where poverty is enforced, where ignorance prevails and where any one class is made to feel that society is an organized conspiracy to oppress, rob, and degrade them, neither persons nor property is safe.”
Fredrick Douglass
“I love America more than any other country in the world, and, exactly for this reason, I insist on the right to criticise her perpetually.”
James Baldwin
“When it comes to my rights as an American citizen and [African Americans], I am a triumphalist and an absolutist. Anything less is an insult.”
James Meredith
Moreover, if letters of advice, correspondence and annoyance were interpreted in its broadest sense, all HRDs would be in jail for educating others on their rights, and persuading international organs to investigate human rights wrongs.[19] As clarified in Grossymeyer v. United States, there must be an intention to aid the enemy or, an intent to promote its power and success.[20] This leads me to believe the US government cannot use treason laws to silence an HRD’s dissent abroad.
To be sure, the Human Rights Committee (“HRC”) asserted that restrictions imposed on free expression to protect the rights of others must be construed with care. Extreme care must also “be taken…to ensure that treason laws and similar provisions are crafted and applied in a manner that conforms to the strict requirements of para. 3.”[21] The HRC delivered another warning: It is not compatible with para. 3 to invoke such laws to suppress or withhold from the public information of legitimate public interests that does not harm national security. That is to say, States may not use treason laws to prosecute journalists, researchers, environmental activists or human rights defenders for having disseminated such information.[22]
One conclusion that can be drawn from these facts is publicizing America’s persecution of African Americans is a moral duty, not treason.
[1] Mian, Zahra N. “‘Black Identity Extremist’ or Black Dissident?: How United States v. Daniels Illustrates FBI Criminalization of Black Dissent of Law Enforcement, from COINTELPRO to Black Lives Matter.” Rutgers Race & the Law Review, vol. 21, no. 1, 2020, p. 63.
[2] Id., p. 55.
[3] Id., p. 89.
[4] Id., p. 82.
[5] Britannica, The Editors of Encyclopaedia. “treason”. Encyclopedia Britannica, 17 Apr. 2023, https://www.britannica.com/topic/treason. Accessed 26 May 2023.
[6] 97 U.S. 39 (1877).
[7] Warren, Charles. “What Is Giving Aid and Comfort to the Enemy?” The Yale Law Journal, vol. 27, no. 3, 1918, pp. 331–47. JSTOR, https://doi.org/10.2307/787437. Accessed 22 May 2023. See p. 336.
[8] Id., p. 346.
[9] General Assembly. “Implementing the Responsibility to Protect.” United Nations, 12 Jan. 2009, https://quiannacanada.com/wp-content/uploads/2023/05/2009-UNSG-R2PReport-En.pdf
[10] Inquiry Commission. “Report of the International Commission of Inquiry on Systemic Racist Police Violence Against the People of African Descent in the United States, 2021,” inquirycommission.org/website/wp-content/uploads/2021/04/Commission-Report-15-April.pdf, p. 119, para 438.
[11] Fabre, Cécile. “The Morality of Treason.” Law and Philosophy. 26 Jun. 2020, pp. 427-461. Springer, https://link.springer.com/article/10.1007/s10982-020-09392-5. See p. 446.
[12] General Assembly. “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.” OHCHR, 1999, www.ohchr.org/en/instruments-mechanisms/instruments/declaration-right-and-responsibility-individuals-groups-and.
[13] Supra, note 11, p. 446.
[14] Id., p. 451.
[15] In my case, human rights violations against African Americans.
[16] Supra, note 7, p. 339.
[17] 325 U.S. 1 (1945)
[18] Supra, note 7, p. 346.
[19] Supra, note 12, Arts. 9, 12 and 16.
[20] (1868) 4 Ct. C1. 1, 13.
[21] HRC. “General Comment No. 34 Article 19: Freedoms of Opinion and Expression.” CCPR/C/GC/34, 11 Sept. 2011, www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf.
[22] Id., p. 7, para. 30.
