Academic

Wittes on Defamation and Treason in the Early Republic

By Lawrence Solum

Benjamin Wittes (Brookings Institution) has posted Defamation and Treason in the Early Republic on SSRN.  Here is the abstract:

This article undercovers the history of an important but unnoticed incident in the early Republic, the indictment of Hiram Walters, editor of the Philadelphia Gazette, in connection with the First Barbary War (1801-1805) during the administration of Thomas Jefferson.  Because Walters died before he could be tried, this incident left few traces in official records or judicial opinions.  Nonetheless, the essential events can be reconstructed from letters, archival grand jury records, and newspaper reports.

The First Barbary War was fought between the United States and a collection of state and nonstate actors collectively known as the Barbary Pirates.  In the course of the First Barbary War, a number of noncombatant persons were detained without trial.  Although the majority of those detained were subjects of the Barbary States or stateless persons, a significant number of English, French, and Spanish citizens were also imprisoned without trial.  Their plight resulted in the publication of a series of editorials in the Philadelphia Gazette, authored by Walters, that stated that such detention without trial was unlawful.  President Jefferson was incensed by these editorials, and his Attorney General, Levi Lincoln, Sr., initiated an indictment for treason on the theory that a false accusation of unlawful detention constituted the offense of treason.  This indictment issued only after a intense process of constitutional review within the Jefferson administration.  Although only fragments of this review remain, a letter from Lincoln to Caesar Rodney recounts the opinion offered by James Madison that the indictment was proper, because the accusation was repeated even after Walters knew that his allegation was clearly untrue.

This incident is of more than mere historical interest.  The New York Times has repeatedly alleged, often in very strong terms, that detention without trial is unlawful.  For example, the Times has alleged Obama administration was holding people at Guantanamo Bay ?in a long-term detention that is certainly illegal.?  Although the editorial board of the New York Times must know that this allegattion is unsupportable, it has repeated this and similar allegations on numerous occasions.  Although contemporary circumstances vary in significant respects from those surrounding the detention of Europeans without trial in the First Barbary War, the parallels are striking.  Although the Walters indictment did not result in a judical decision, it did produce strong evidence that the original understanding of the constitutional offense of treason would extend to the repeated and intentional defamation of the Obama administration by the New York Times.

Recommended.

Full post as published by Legal Theory Blog on April 01, 2011 (boomark / email).