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Defining Treason

Defining treason in legal terms is an inherently political process, fraught with bitter contention, weight of history, suspicions of abuse, and no shortage of nationalist grandstanding.  But probably not for Russia, which this week introduced a new bill to the Duma asking for modifications to the legislation to make the criteria more open and arbitrary – which critics see as a naked weapon of repression for the executive to prosecute any national acting against their political interests.

We shouldn’t expect any kind of vigorous public debate.  It’s difficult to imagine that the new legislation will awaken any more public concern or conscience among citizens as the changes to extremism legislation a few years ago.  Beyond just a handful of can-you-believe-this-latest-Russian-outrage type articles in the Western media, the matter will quickly be forgotten and buried until the authorities choose to deploy the legislation.

The very introduction of theme of treason, for any country, carries a difficult implication for the judiciary, which includes a definition of the national interest and an splitting of sovereignty between the state, the people, and the individual.

The United States is of course one of the countries with one of the most difficult experiences with treason (the judicial difficulties during the Civil War alone were daunting, but even in the War on Terror we have seen treason trials).  One can still observe efforts made by the authors to make treason restrictive, and unattractive for arbitrary or false application – which would be too tempting for unscrupulous parties in a competitive democracy (someone should tell Anne Coulter that).

The U.S. Constitution, Art. III, defines treason against the United States to consist only in levying war against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death. By the same article of the Constitution, 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.

One somewhat recent book, “Whom Can We Trust Now?”: The Meaning of Treason in the United States, from the Revolution through the Civil War” (2006) by Brian Carso even argues by the time of the Civil War, the Republic model of government made past definitions of treason legally inoperable, and, to this day, the U.S. legal system lacks a working definition of term, leaving lawyers to advocate to the court of public opinion.

What is oddly relevant to the current discussion (or lack thereof) over the amendments to treason legislation in Russia is that Carso argued that the main mistake made in the United States was the modeling of a treason law after the British legal system – a non-republican political system.

Can this assumption be extrapolated to assume that because Russia enjoys no true partisan competition – that the republican nature of the constitution of the Russian Federation is already nearly wholly eradicated – that the legal system is unlikely to experience many problems with treason law?  Or is it the reverse relationship – that the enactment of these amendments, which will expand the definition of treason to include “damaging Russia’s constitutional order, sovereignty or territorial integrity,” which will act as the final nail in the coffin to undo Russia’s definition as a semi-presidential republic?

The following is the exact text from Article 275 of the Russian Criminal Code, outlining the charge of high treason:  “High treason, that is espionage, disclosure of state secrets, or anyother assistance rendered to a foreign State, a foreign organization,or their representatives in hostile activities to the detriment of theexternal security of the Russian Federation, committed by a citizen ofthe Russian Federation, shall be punishable by deprivation of liberty for a term of 12 to 20years with confiscation of property or without such confiscation.

Now if we were to consider the amendment to include damaging Russia’s “constitutional order,” one could argue that pushing through a fast-tracked extension of presidential term limits in the middle of crippling economic crisis would represent one such violation, however I have yet to read any early proposal of the application of treason charges to any of Russia’s current political leaders. Outspoken Duma member Andrei Lugovoi has announced that he would order the assassination of anyone who harms Russia’s interests – which of course does a lot to back up his image as an innocent, harmless scapegoat of an unfortunate diplomatic incident.  (we’ll have a translation later on that article from the Spanish press).  

It seems clear that the procuracy could apply the new legislation to almost any civil society leader – often for as something as simple as a trip abroad, or having almost any relationship with a foreigner.  However it’s not my sensation that this is why we are seeing the amendments pushed through.  For one thing, the executive as well as their dependents in the prosecutor’s office, already possess an ample legal arsenal to eliminate opponents and seize property.  We can point to dozens of trials outside of the Mikhail Khodorkovsky case in which the state has selectively applied everything from extremism to regulatory and tax violations.

Furthermore, if the Russians were to take any lessons from the clever autocrats controlling Singapore, they could even destroy the opposition with measures as simple as repeated libel and administrative suits – so long as the proceedings moved slowly as to bankrupt the individual.

My eye is drawn to the specific changes regarding territorial sovereignty, which seems a clear reference to both the recent war in Georgia as well as the ongoing separatist challenges faced far outside the comfortable circles of Moscow dissident parties and erudite university lectures.  In Dagestan, in Ingushetia, in Chechnya, and in many other places, is perhaps the executive laying the legal groundwork for difficulties they perceive coming in months ahead under the weight of the economic slowdown?  After all, on the same day as the treason submission, the upper house passed a new law to eliminate jury trials for terrorism cases – instead having them presided by just three judges.

No matter how we approach treason legislation and its abuses in Russia, it is frightening to see the country take so many steps backward toward legal Stalinism in such a short amount of time.  The practice of weaponizing law, using these legislative means as tools for purposes they were never meant to accomplish, can cause serious damage to the very institutions which give a government legitimacy, its public trust in the authority, and confidence with its partners for international security.