Treason

At the time when the US Constitution was being drafted, in 1787, treason had long been considered the greatest of crimes against humanity. The Framers of the Constitution discussed the wording of the document’s treason clause at length and relied upon the common law and the English Statute of Treasons for their definition of the crime. Aware of abuses of treason in England, whose laws allowed the suppression of political and religious speech, the Framers were concerned with limiting the scope of the crime while at the same time protecting national security. They also worried that treason excited hatred and fear against those charged with the crime. The Constitutional Convention chose to explicitly entrust cases in which treason was alleged to the judicial power.

Article III, section 3 of the Constitution defines treason precisely:

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.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Constitution’s treason clause limits treason to making war on the United States or aiding enemies of the nation. Moreover, the clause prohibits the legislature or the judiciary from redefining treason. Finally, no one can be convicted of treason unless at least two witnesses testify to the same overt act or the accused person confesses in an open court. The two-witness rule helps to ensure that an innocent person is not convicted on the testimony of a single biased or self-interested witness. Finally, the clause gives Congress the power to establish the punishment for treason.

Treason Cases in History

Throughout American history, only about thirty-five treason cases have been pressed to trial by the federal government. No one has yet been executed upon a federal treason conviction, and presidents have frequently pardoned those convicted or mitigated their sentences. (In 1953, Ethel and Julius Rosenberg were executed after being convicted of conspiracy in connection with selling atomic secrets to the Soviet Union, but they were not charged with treason.) Cases of alleged treason have rarely had a central bearing on national security policy. Instead, the federal government has relied upon cooperation between Congress and the president to maintain national security.

Many US states have their own treason laws, but they have seldom used them. Only twice have states completed treason prosecution cases. The first instance was Rhode Island’s conviction of Thomas Dorr in 1844. The second case was Virginia’s conviction of John Brown in 1859. Both men were charged with levying war against the states.

The treason clause of the federal Constitution was first interpreted in the Whiskey Rebellion trial of 1795. The case arose when armed settlers in eastern Pennsylvania protested a federal excise tax on distilled whiskey, but they were soundly defeated by militia under the personal command of President George Washington. Two ringleaders in the rebellion were convicted of treason but were pardoned by Washington.

Another interpretation of the treason clause occurred in the 1807 trials of Aaron Burr and his co-conspirators in federal court. A former vice president, Burr was charged with plotting to lead the southwestern United States into secession from the Union with the intention of establishing a confederacy under his leadership. He was indicted and tried for treason but was acquitted, in large part because of Chief Justice John Marshall’s narrow interpretation of the constitutional meaning of treason. In a trial of two of Burr’s confederates, Marshall confined the meaning of levying war to the actual waging of war. Marshall’s ruling made it extremely difficult to convict anyone of levying war against the United States, short of actually participating in armed actions. Marshall’s rulings in those cases ensured that treason would thereafter be a legal, rather than a political, concept, thereby limiting the number of treason indictments and trials in later history.

Most US treason trials have arisen during times of national crises and wars. For example, during the War of 1812, acts such as selling provisions to the British, releasing prisoners to the enemy, and attacking troops enforcing embargoes were prosecuted as treason. However, all of the accused were acquitted. In 1851, a jury acquitted a defendant accused of treason for forcibly interfering with the recapture of escaped slaves under the Fugitive Slave Law.

A number of persons were convicted of treason during the Civil War and its aftermath. Such acts as participating as a member of a state militia company in the seizure of a federal fort or fitting out and sailing a privateer were held to be the levying of war and thus treason. Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy, likewise, were found to be giving aid and comfort to the enemy. After the war, Jefferson Davis , the former president of the Confederacy, successfully argued that rebels whose government achieved the status of a recognized belligerent could not be held for treason. Davis himself thus was not tried for treason.

During the 1899–1903 Philippine insurrection against US occupation, armed efforts to overthrow the government were found to be acts of levying war. Some rebels were convicted of treason, but strict enforcement of the two-witness requirement resulted in some of the convictions being reversed.

After the nineteenth century, the president and Congress relied upon statutory criminal protections against disloyalty and no longer considered the treason charge as the principal bulwark of state security. Such federal laws as the Espionage Act of 1917, the Smith Act of 1940 , the Uniform Code of Military Justice, the Patriot Act of 2001, and seditious conspiracy statutes have provided alternatives for prosecutors to deter or punish crimes that threaten national security without resorting to treason indictments. As mid-twentieth century Supreme Court justice Robert H. Jackson observed, “We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability.”

During World War I, Congress passed legislation making it a crime to speak or publish words intended to bring the government into contempt or to interfere with the success of the military. Nearly one thousand people were convicted under these statutes. Remarkably, however, only three cases of treason arose at that time when feelings ran high against unpopular opinions or attitudes.

During World War II, in Cramer v. United States (1945), the Supreme Court interpreted the constitutional requirement that treason be proved by the testimony of two witnesses so expansively as to provide a remarkable degree of protection against the overuse of treason indictments. On the other hand, in Haupt v. United States (1947), the Court sustained a conviction based on evidence that did not satisfy the requirements of Cramer. That ruling facilitated seven treason prosecutions of American nationals, including Iva Toguri (known as “Tokyo Rose”) and other radio-broadcast defendants, for aiding the Axis Powers during the war. The last case of treason before the Supreme Court was Kawakita v. United States in 1952, involving a US citizen who brutalized US prisoners in a Japanese war-materials plant during World War II.

However, as the twenty-first century has seen an increase in the number of homegrown terrorists due to the influence of radical organizations such as al-Qaeda and the Islamic State of Iraq and Syria (ISIS), the concern regarding acts of treason and threats to US security has also risen. In 2006, Adam Gadahn, a man who had been raised in California and had converted to Islam, became the first American to be charged with treason since Kawakita. After several videos had been released of Gadahn on behalf of al-Qaeda, the United States indicted him for committing treason against his native country through the support and propaganda he provided for the terrorist group with which the United States has been at war. The case, however, was never brought to court as Gadahn had been killed in a drone strike in Pakistan.

Many began immediately calling Edward Snowden a traitor after it was announced that he had been the one to release a multitude of confidential National Security Agency (NSA) documents in 2013. However, as there was no clear enemy that Snowden had been aiding and such a case would be extremely difficult to make, no treason charges were ever filed against him.

According to  the Federal Bureau of Investigation, only twelve people in US history have ben tried and convicted on charges of treason or sedition as of the 2020s. The most recent charges of sedition against American citizens were levied in 2010 against members of a Michigan-based militia. However, the members were later acquitted of the sedition charges, while three pled guilty to weapons charges.

Investigation

The Federal Bureau of Investigation (FBI) has primary responsibility for investigating treason allegations under its mandate to protect the United States against terrorist and foreign intelligence threats. The mission of the bureau’s Intelligence Program is to position the FBI optimally to meet current and emerging national security and criminal threats by aiming core investigative work proactively against threats to US interests.

United States attorneys in the Department of Justice have the power to prosecute those accused of treason. Under the federal criminal justice system, federal prosecutors have wide latitude in determining when, whom, how, and even whether to prosecute possible violations of federal criminal law. The prosecutors’ broad discretion in such areas as initiating or forgoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts.

Punishment

The punishment for a person found guilty of treason is death or imprisonment for not less than five years and a fine of not less than ten thousand dollars. Persons convicted of treason are also barred from holding any office under the United States.

Any US citizen who has knowledge of an act of treason against the nation and fails to report the act to government authorities promptly may be found guilty of misprision of treason—an early common-law concept under which a person was required to report or prosecute one known to have committed a felony. The punishment for misprision of treason is a fine or imprisonment of not more than seven years, or both.

Bibliography

Chapin, Bradley. The American Law of Treason: Revolutionary and Early National Origins. Seattle: U of Washington P, 1964. Print.

Hurst, James Willard. The Law of Treason in the United States: Collected Essays. Westport: Greenwood, 1971. Print.

Krikorian, Greg, and Richard B. Schmitt. "Videos Lead to Treason Charge." Los Angeles Times. Tribune, 12 Oct. 2006, www.latimes.com/archives/la-xpm-2006-oct-12-me-gadahn12-story.html. Accessed 10 July 2024.

Lucas, Eileen. The Aaron Burr Treason Trial: A Headline Court Case. Berkeley Heights: Enslow, 2003. Print.

Matthews, Dylan. "No, Edward Snowden Probably Didn't Commit Treason." Washington Post. Washington Post, 12 June 2013, www.washingtonpost.com/news/wonk/wp/2013/06/12/no-edward-snowden-probably-didnt-commit-treason/. Accessed 10 July 2024.

Melton, Buckner F., Jr. Aaron Burr: Conspiracy to Treason. New York: Wiley, 2001. Print.

Tarm, Michael. "Notable Sedition, Treason Cases in American History." Associated Press, 13 July 2021, apnews.com/article/joe-biden-government-and-politics-capitol-siege-809273dd6e90d08a5109dd5a451a5c09. Accessed 10 July 2024.