The Rise and Fall of the Constitutional Law of Treason
Treason is not what most people think. As a crime, it’s very limited in scope, difficult to prosecute, applies only to citizens, and requires a war or proper enemy recognized by the law. Frankly, it’s just not used. Not for over 70 years. And probably never will be used again.
Recently, U.S.-supported troops in Syria captured Warren Clark, an American from Houston, fighting for ISIS as part of a small cell, reportedly planning to attack civilians. Is he guilty of treason? The answer is anything but simple and will likely make little difference.
Treason is the only crime mentioned in the Constitution, modeled on the only useful parts of England’s Treason Act of 1351. The Founding Fathers earnestly sought to prevent the often cruel results from centuries of Britain’s abuse of its law. Still, they chose the best language from the Treason Act to provide clear, limited application of treason for the new nation.
As declared in the Constitution, treason exists only by “levying war against” the United States “or in adhering to their Enemies, giving them Aid and Comfort.” Convictions require the testimony of two witnesses of overt acts of treason or a confession in open court.
The Whiskey Rebellion in Western Pennsylvania in 1798 provided the first test of the Constitutional design of treason. Armed frontier farmers joined together to combat federal taxes on spirits, by attacking excise officers, interfering with tax collection. Juries concluded that preventing the officers’ work equated to levying war, when intended to prevent general enforcement of the law.
In contrast, a citizen in Vermont gathered his friends in armed assembly and took possession of a raft of his timber that had been seized by the government as a tax payment. Simply wanting his timber back, he made no call to generally oppose the tax law. The taxpayer was acquitted of treason in 1808; the court explained that a conviction of treason required proof of a general intent to overturn the Embargo Act.
Around the same time, former Vice President and victorious dueler Aaron Burr, sour on the course of the nation, raised funds and recruited thousands of troops to seize New Orleans to create an independent nation. Prior to his arrest in Alabama, Burr’s recruits had gathered to organize. However, with no evidence of any overt act of Burr levying of war, he was acquitted.
Northern opposition to the Fugitive Slave Law of 1850 generated the next wave of treason. Armed assemblies actively opposed the government’s return of fugitive slaves to their owners. In Pennsylvania, a government officer found the escaped slave and attempted to enforce the warrant for his return to the owner. The armed slave, joined by his armed neighbors, attacked the officer, denying the “legal” return.
One of the participants was tried for treason. The judge told the jury that if the accused had not attended any meetings supporting armed action to rescind the law, or did not even know of the law’s existence, then his fight to prevent the warrant served only as a private matter and not a general overt act of treason against the government. The jury agreed and found for the defense.
The four-year calamity of the Civil War marked a turning point in Constitutional treason. For one thing, Congress changed the punishment for treason convictions from mandatory death to punishment as determined by the judge. With the North’s victory, widespread application of the Constitutional treason law would have seen prosecutions against a very large portion of the southern population. To charge so many southerners of treason – including all of their leaders – was not only political dynamite, but it simply wouldn’t work. Southern jurors had no stomach to destroy their neighbor’s lives with treason convictions. Congress with President Johnson answered by enacting a general pardon of all southern citizens involved in the Civil War, including the Confederate leaders.
During the war, some rebels faced treason indictments. For example, charges were filed against rebels who seized a schooner from U.S. revenue officers in San Francisco. These captured citizens of the “so-called” Confederate States could not be “enemies” because the Confederacy did not exist as a foreign power. Without a declared “enemy,” it was legally impossible for the rebels to “give Aid and Comfort,” since the North refused to recognize the Confederacy as a legal nation.
Instead, the defendants were convicted of levying war against their country (the United States); clearly the right call. Without Congress declaring war, no legal enemy exists, and treason charges die for want of an enemy. This concept remains applicable in modern times, depending on Congress (or the law) to establish American adversaries, including Russia and ISIS as proper enemies, for treason to have any traction.
With two world wars consuming the first half of the 20th century, not all Americans supported American involvement. Assisting German spies brought several Americans to trial. One citizen, Anthony Cramer, met with known spies in New York, providing physical aid of various kinds. He was convicted and sentenced to 45 years in prison and a $10,000 fine. Cramer survived a death sentence only because the judge was convinced that Cramer did not know that the Germans possessed explosives intended to destroy domestic factories. The Supreme Court reversed the conviction on the grounds that the evidence did not prove overt acts of treason.
Expressions of support for the enemy, by print or radio broadcast, would normally find protection behind the First Amendment. War changes many things, including the government’s sensitivity to opposing – read dangerous – words. Mere words, even those generally opposing the war, still enjoyed constitutional protection. However, when words were used to encourage unlawful action, such as resistance to the draft, promoting insubordination among the troops, or to “foster a spirit of defeatism, of hopelessness, in the face of vaunted German might,” the First Amendment is chewed up by the teeth of treason.
From the infamous Tokyo Rose to Axis Sally and many more, Americans broadcasted from Germany and Japan infamous words of discouragement to the troops and military intelligence useful to the enemy. Various female radio broadcasters in the Pacific zone came to be viewed by the troops singularly as “Tokyo Rose.” Political forces distilled the moniker down to a single American, Iva Toguri D’Aquino, of Japanese descent, when chosen as the marquee example of war-time treason. Recordings of broadcasts of psychological warfare, and in one instance a most demoralizing report of significant loss of U.S. ships in the battle of Leyte Gulf, brought the weight of the United States justice system against D’Aquino.
Convicted of treason, D’Aquino served six years in prison. She continuously claimed that she secretly intended to harm the Japanese war effort by broadcasting disinformation. Years later, when two trial witnesses admitted that they had been threatened to testify against her and the jury foreman described the judge pressing for a guilty verdict, public opinion turned in D’Aquino’s favor. President Ford pardoned her in 1977.
Treason occurred by print/electronic publication or by physical assistance, where the accused adhered to the enemy and provided aid and comfort. Like a marriage vow, to adhere is to commit allegiance to a country. In the Constitution, to “adhere” to the enemy is treason when the adherence is shifted in wartime to a foreign power from allegiance owed to the U.S.
A more difficult, and most nefarious, case to consider involved a California native born to Japanese parents. Tomoya Kawakita, while residing in Japan, worked as an interpreter at a private Japanese mining company engaging enslaved prisoners of war to mine nickel ore to benefit Japan during the war. Kawakita became infamous among the prisoners, including many Americans, for the physical cruelty he employed against them to increase production.
After the war, Kawakita returned to California in obscurity as a civilian, but years later was discovered by one of his victims, tried, and convicted of treason. His duel Japanese citizenship failed to convince the judge that treason against America cannot exist. His allegiance to the U.S. remained, despite his claim that he renounced his citizenship. Sentenced to death in 1948, President Eisenhower later commuted Kawakita’s sentence. Kawakita was the last American convicted of treason.
The American law of treason solidified the moment that New Hampshire’s vote ratified the Constitution in 1788. Since then, with many laws at the ready for prosecutors, the heady days of cries of treason finding home in courtrooms and public squares are long gone, leaving treason, unused, in its lonely corner. Treason imposes too many obstacles to be of much practical use in modern times fighting citizens and non-citizens over battles and incursions, spies and cyberwarfare, not to mention the seemingly endless war against terrorists bent on destruction, wherever and however it would occur. Laws against conspiracy, espionage, terrorism, and their ilk occupy center stage as the tools of choice for modern prosecutors against those caught doing harm to the United States’ interests.
As for Mr. Clark, I would think he has much more to worry about than the remnants of a 500-year-old law intended to protect English monarchs.