Treason

The betrayal of one's own country by waging war against it or by consciously or purposely acting to aid its enemies.

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the Common Law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of Espionage committed on behalf of an ally constitute treason. For example, julius and ethel rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal Amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty Beyond a Reasonable Doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an Overt Act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

The English common law required defendants to forfeit all of their property, real and personal, upon conviction for treason. In some cases, the British Crown confiscated the property of immediate family members as well. The common law also precluded convicted traitors from bequeathing their property through a will. Relatives were presumed to be tainted by the blood of the traitor and were not permitted to inherit from him. Article III of the U.S. Constitution outlaws such "corruption of the blood" and limits the penalty of Forfeiture to "the life of the person attainted." Under this provision relatives cannot be made to forfeit their property or inheritance for crimes committed by traitorous family members.

Further readings

Carlton, Eric. 1998. Treason: Meanings and Motives. Brookfield, Vt.: Ashgate.

Holzer, Henry Mark. 2002. "Why Not Call It Treason? From Korea to Afghanistan." Southern University Law Review 29 (spring).

Kmiec, Douglas W. 2002. "Try Lindh for Treason." National Review (January 21).

Spectar, J.M. 2003. "To Ban or Not to Ban an American Taliban? Revocation of Citizenship and Statelessness in a Statecentric System." California Western Law Review 39 (spring).

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.