“Treason” is one of those legal terms that people tend to use in conversation but have no real notion of what it means. And while it is acceptable at some level to use legal terms loosely in conversation because most listeners understand what is meant, “treason” is a term that carries such weight that I think care must be taken when we use the term and some knowledge of what is behind the term ought to inform our conversations about it. Calling the current president incompetent or a crook is one thing; calling him a traitor is a whole different animal. Calling what he has done or allowed to be done vis-a-vis Russia irresponsible or treacherous again is one thing; saying he is guilty of treason takes it to a whole new level.
So what is “treason”? As always, the best place to start is the Constitution. Article III, Section 3 of the Constitution provides:
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.
Not only does the Constitution define treason (and it is the only crime defined anywhere in the document) but it sets forth the standard: the testimony of two witnesses to the same overt act, either “levying” (waging) war against the United States or “adhering to” the United States enemies, giving them aid and comfort. (A confession “in open court” will also do). (The U.S. Code provision, 18 U.S.C. § 2381–Treason is here, setting forth the penalties for treason).
Probably not what you were thinking when you hear “treason”. And you’d be forgiven for that because there have been relatively few treason prosecutions in American history. In fact, there has only been one since 1954 (and that was only an indictment: Adam Gadahn was indicted for participating in several al-Qaeda propaganda videos but was killed in a drone strike in Pakistan in 2015 before he could stand trial). Julius and Ethel Rosenberg were tried (and executed) not for treason but for espionage. “Levying war against the United States” was very narrowly defined in no less a case that two of Aaron Burr’s alleged co-conspirators in the plot to overthrow the government in New Orleans in the early 1800’s. In Ex parte Bollman and Swarthout, 8 U.S. 75 (1807) the Supreme Court dismissed treason charges against Bollman and Swarthout because they had only conspired to levy war by recruiting troops, procuring maps and drawing up plans; they had not actually waged war by having “an actual assemblage of men for the purposes of executing a treasonous design.” as Chief Justice John Marshall put it. Conspiring to wage war is not treason. Only fully waging war is.
The other treason offense–giving the enemy “aid and comfort”–was also narrowly construed by the Court. In Cramer v. United States, 325 U.S. 1 (1945) the Court, in an opinion written by Justice Jackson (soon to be the chief Nurenberg prosecutor) held that one could be convicted of treason only if they “adhered to the enemy” and gave that enemy “aid and comfort”. Doing just one or the other is not enough. And this was not a run-of-the-mill case. It was part of the Nazi Saboteurs Affair, where German soldiers surreptitiously infiltrated the U.S. during WW II. Cramer was charged with treason for allegedly helping them. The Court held that “[a] citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason.” On the other hand, citizens may give “aid and comfort” to the enemy–giving a speech critical of the U.S. government, striking in defense plants–anything “which would impair our cohesion and diminish our strength–but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason”. The Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason.
This interpretation is in keeping with what the Framers had in mind when they drafted Article III, Section 3. They did not want the United States to be England, where just thinking about, say, changing the government, wishing the king’s death or even making fun of the king were defined as treason. This is why treason requires an “overt act”, and the same overt act must be witnessed by two people. And it requires intent. Treason is hard to prove because it ought to be, and the Framer’s wanted it that way. Prosecutors have many statues they can work with to achieve the same ends without going through the Constitutional hoops of treason.
But what about cyber warfare? The Framers, and the Supreme Court, in 1807 or 1945, could not have imagined it. Does that change how we should think about treason, and what “levying war” and “aid and comfort” mean? The answer, I think, is “yes”. In a thoughtful piece from Prof. Carlton Larson on the Take Care site, he puts the question this way:
If a non-digital equivalent to cyberwarfare is treason, then the cyber version probably is as well. But if the non-digital version is not treason, it does not become so merely because it was accomplished by cyber means.
I think it’s a good point: things don’t magically become treason just because the means are digital. On the other hand, the cyber world gives people ways to give “aid and comfort” entirely remotely, say by aiding hackers, and war can be “levied” from across the globe, say by taking down the power grid. The definition of treason does not need to change, but our understanding of the elements of it in the digital age must catch up.
And one more point. Who are the “enemies” to whom the traitors give “aid and comfort”? The United States has not been in a declared war since World War II. Does that mean we have no enemies? Clearly not. Certainly, the Gadahn prosecutors thought al-Qaeda was our enemy. Does that mean that anyone against whom the Authorized Use of Military Force Resolution is used is an enemy? More to the point, is Russia our enemy? Espionage prosecutors have thought so since at least 1945, but, again, that is espionage, not treason. But should it be? No prosecutor really wants to go there; the espionage acts will do just fine without “overt acts” and two witnesses. Again, we need to think about the term “enemies” in the cyber world.
All things to ponder as you think about treason. It’s certainly not a discussion that is not going away.