The Impotence of America’s Treason Laws

By Justin Yang
Justin Yang is a junior at the University of Pennsylvania studying Politics, Philosophy, and Economics.
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One of the long-forgotten clauses of the United States Constitution is the Treason Clause, among the few crimes defined in the document. With many Americans today engaging in attacks against the United States through terrorism or cyber-warfare, two of the biggest threats the country faces, an interesting question can be raised: can those people be charged and convicted with treason?

Article III, Section 3 of the United States Constitution defines treason as follows: “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.” In effect, there are only two conditions in which a person commits treason: levying war against the United States, and giving “Aid and Comfort” to our enemies. However, what those clauses actually mean, and to whom exactly treason applies, remains an open question.

A common misconception is that treason only applies to citizens of a country: you can’t betray a country if you aren’t a citizen of it. However, treason applies to more people than United States citizens. It applies to anyone who has an allegiance to the United States, including those with only “temporary or local” allegiance, such as legal residents who are nonetheless foreign citizens, as expressed in the 1872 Supreme Court case Carlisle v. United States. [1] All American citizens, regardless of where they are, and all people living in the United States are therefore the only people who are capable of committing treason against the United States.

Levying war is also a vague term that requires definition: what exactly would consist of levying war against the United States? One of the few cases in which the Supreme Court addressed treason was in 1807, with the case of Ex parte Bollman. Here, Chief Justice John Marshall wrote that levying war “must be brought into operation by an assemblage of men for a purpose, treasonable in itself.” [2] Quoting Justice Samuel Chase, Marshall further wrote, “some actual force or violence must be used in pursuance of such design to levy war, but it is altogether immaterial whether the force used is sufficient to effectuate the object—any force connected with the intention will constitute the crime of levying war.” [2]

In a related case in the same year, United States v. Burr, Marshall loosened that definition slightly by including those who were not physically part of the assemblage of men, but were actively helping and aiding such an assemblage. [3] Obviously, an assemblage of men would include more than one person, which implies that treason requires an organized group effort employing some level of force, raising the requirements for which people can be considered traitors.

Providing aid and comfort to enemies has also been interpreted narrowly. English precedent on the definition of enemies, which American courts have recognized, states that enemies of a country can only be foreigners with no allegiance to the country in question. [4] It is also unnecessary for the country to be in a state of declared war, as long as there are “actual” and “open” hostilities. [4] All this limits the definition of enemies to foreigners who have allegiance to another country that is engaged in declared or open warfare. In addition, these treasonous acts must be attested to by two witnesses of the overt act of treason – any actions leading up to the act of treason would still not count.

All this makes the Treason Clause of the Constitution one of the more impotent clauses in the Constitution. Although citizens and non-citizens who have temporary allegiance can commit treason, the actual act itself is very narrowly defined to involve more than one person, with a certain level of force, in aid of a narrow group of people considered enemies. In the modern age, it seems almost impossible to charge a person with treason. Consider cyber-attackers and cyber-terrorists. A lot of the time, these people are working alone, or at most with a loosely organized group of people behind them, far from what would be considered an assemblage of people. [5] Surely if an American citizen hacks into the nuclear stockpile and detonates a nuclear bomb on American soil, that person has levied war against the United States; but under American law, if the person has acted alone, they have not committed treason.
This technicality might be overcome if we interpret an assemblage of men to imply some sufficient standard of force or threat rather than a literal assemblage of people, but then this standard of force needs to be defined. The above example involved physical violence, but what if a person managed to hack into our voting machines, undermining our elections? Would this be a sufficient act to count as levying war? The lack of jurisprudence on this issue renders the use of treason to prosecute people like these very tricky business.

Prosecuting against terrorists might be easier, however. Terrorist groups are obviously assemblages of people, and since people not physically part of but is aiding a group can be tried for treason too, terrorists who were inspired to carry out attacks on the terrorist group’s behalf might be considered to be levying war. They also might be considered to be providing aid and comfort to these groups, if foreign terrorist groups are considered enemies. Congress has not formally declared war on Al Qaeda or the Islamic State, but it is without doubt that the United States is engaged in “open hostilities” with these groups, since troops have been sent to physically fight them.

However, recent Supreme Court cases may have still made it impossible to prosecute these types of terrorists for treason. Historically, treason has been tried by civilian courts; this fact is recognized by the Constitution when it placed the Treason Clause in Article III, which defines the boundaries of the judicial branch, as well as requiring treason to be tried in “open court.” [4] Unfortunately, the Supreme Court ruled in Hamdi v. Rumsfeld that people designated as enemy combatants by the United States Government, including American citizens, can be tried by military courts. [6] If treason must be tried in civilian courts, then taking people through military courts would mean treason cannot be one of the crimes charged. Justices Scalia and Stevens recognized this in their dissent to Hamdi, writing, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.” [6] Therefore, even if a person with allegiance to the United States has levied war against the United States or provided aid and comfort to its enemies, as a terrorist would, by putting them through military courts, the Treason Clause is once again rendered useless.

There is a reason why so few people have been convicted of treason in the United States, why nobody seriously brings up treason as a possible crime to charge people with. It is because of its narrow definition and high evidentiary standards, emphasized by both the Treason Clause itself, and by subsequent Supreme Court jurisprudence. Of course, perhaps it is good that this is the case: by making it very difficult to convict people for crimes against the United States and its government, the government can’t take a broad definition to start locking up subversive Americans. Perhaps it is so hard to actually betray the country because the country doesn’t want to betray our liberties.

[1] “Carlisle v. United States.” Justia. Accessed November 8, 2017.
https://supreme.justia.com/cases/federal/us/83/147/case.html
[2] “Ex parte Bollman.” Justia. Accessed November 8, 2017.
https://supreme.justia.com/cases/federal/us/8/75/case.html
[3] “The Heritage Guide to the Constitution.” The Heritage Foundation. Accessed November 8, 2017.
​http://www.heritage.org/constitution/#!/articles/3/essays/119/treason
[4] Larson, Carlton F. W. “The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem.” University of California, Davis, School of Law. Accessed November 8, 2017.
https://poseidon01.ssrn.com/delivery.php?ID=189069123081088108030090002085028103025072088045028034119096092076097071072088124027106016006035108029051119113104088070085112026006077009066108093083003101127084037002116087094084004073119010116089029016112114026067003069027076023028075016088021&EXT=pdf
[5] Larson, Carlton F. W. “Treason and Cyberwarfare.” Take Care Blog. Accessed November 8, 2017.
https://takecareblog.com/blog/treason-and-cyberwarfare
[6] “Hamdi v. Rumsfeld.” Justia. Accessed November 9, 2017. https://supreme.justia.com/cases/federal/us/542/507/
Photo Credit: Flickr user Johnathan Thorne

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