Eleanor Finch
The concept of treason is an important part of the US Constitution. The Founding Fathers were well-versed in British laws about treason, which were much broader than current definitions, and included offenses such as having sexual relations with the king's wife. The Constitution requires an act of treason, rather than just treasonous thoughts, and treason is limited to two specific offenses: levying war against the United States, and adhering to their enemies, giving them aid and comfort. There have been very few treason trials in the US, and treason charges are rarely brought. However, treasonous conduct may be prosecuted under other statutes, such as the Espionage Act or the Trading with the Enemy Act.
| Characteristics | Values |
|---|---|
| Treason in the US | Requires an "actual assemblage of men for the purpose of executing a treasonable design" |
| Conviction of treason | Requires testimony from two witnesses to the same overt act or a confession in open court |
| Treasonous actions vs. treasonous thoughts | There is a crucial distinction between the two |
| Treason vs. other charges | Federal prosecutors can pursue non-treason charges, such as violating the Espionage Act, without needing to satisfy the procedural requirements of the Treason Clause |
| Treason prosecutions | Rare in the US, with only about 30 treason trials since 1789 |
| Treason vs. other crimes | Lower courts have avoided trying defendants on treason charges by concluding that other crimes, however similar, do not contain all the same elements required to prove treason |
| Treason and war | To be convicted of treason, a person must be levying war against the US or aiding its enemies |
| Punishment for treason | Death, imprisonment of at least 5 years, and a fine of at least $10,000 |
| Treason and the First Amendment | The First Amendment protects treasonous thoughts, as national security offenses deserve heightened procedural protections |
| Treason and British law | The US Constitution's definition of treason is narrower than British law, which includes offenses like counterfeiting and murder of a husband by a wife |
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What You'll Learn
What constitutes treason?
The concept of treason is an important part of the US Constitution, with the Founding Fathers being well-versed in the broader British laws on treason. The Treason Clause in Article 3, Section 3 of the Constitution defines treason as levying war against the United States or adhering to their enemies, giving them aid and comfort. This definition was deliberately limited to exclude political offenses, such as criticising the government.
To be convicted of treason, there is a high bar of proof, requiring the testimony of two witnesses to the same overt act or a confession in open court. The Constitution also grants Congress the power to declare the punishment for treason. However, this does not include corruption of blood or forfeiture beyond the life of the traitor.
Historically, treason prosecutions have been rare, with only about 30 trials since 1789. One notable case was that of former Vice President Aaron Burr, who was acquitted of treason charges in 1807 for his alleged plot to overthrow the American government in New Orleans. The Supreme Court ruled that conspiring to levy war was not enough to constitute treason; there must be an "actual assemblage of men for the purpose of executing a treasonable design".
In modern times, treason charges have been considered for individuals such as Edward Snowden and Adam Yahiye Gadahn, but they were not prosecuted for treason. Instead, they were charged with other offences, such as espionage conspiracy under the Espionance Act, highlighting the distinction between traitorous actions and treasonous thoughts.
In conclusion, treason is a serious offence that requires specific actions, such as levying war or aiding enemies of the United States. The legal system carefully weighs the evidence and charges, ensuring that treason prosecutions are reserved for the most extreme cases that meet the strict criteria set by the Constitution.
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The Treason Clause
Despite the narrow definition, there have been about 30 treason trials in the US since 1789. The last people involved in a treason-related trial who were convicted and executed were Ethel and Julius Rosenberg, who were charged with conspiracy to commit espionage, not treason. More recently, treason charges were considered against former contractor Edward Snowden and California-born spokesman for al-Qaida, Adam Yahiye Gadahn.
In some cases, treason charges have been avoided due to the high burden of proof required. For example, John Walker Lindh, an American citizen who fought for the Taliban, accepted a plea bargain and was indicted on 10 other charges.
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Limitations of Congress
While there is no specific legal precedent that deems circumventing the constitution as treason, there are several limitations on Congress outlined in the US Constitution.
Firstly, Congress cannot ban the "writ of habeas corpus", which is the right of prisoners to inquire into the legality of their imprisonment. This is a fundamental protection against unlawful detention. Secondly, Congress cannot convict a person without a trial, nor can they prosecute someone for an action that was not a crime at the time it was committed. Congress is also restricted in its ability to directly tax citizens; any direct taxes must be proportional to the population of each state. Additionally, Congress cannot place tariffs or taxes on goods being transported from one state to another.
Congress is also prohibited from enacting laws that show preference to one state's ports over another. They cannot grant titles of nobility, and no US officer can accept titles, offices, or payments from foreign countries without congressional consent. Furthermore, Congress cannot pass a law to declare someone guilty of a crime; criminal laws passed by Congress can only be applied from the time they are enacted. Congress must also publish regular statements of the Treasury Account, detailing the receipts and expenditures of public money.
While the Cramer Court acknowledged Congress's broad powers to criminalize offences harmful to the US, it also emphasized limits to this power. For example, Congress cannot dispense with the "two-witness rule" by renaming an offence.
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Treason vs. other charges
Treason is defined as "the highest of all crimes"—defined as intentionally betraying one's allegiance by levying war against the government or giving aid or comfort to its enemies. It is the most serious offense one can commit against the government and is punishable by imprisonment or death.
The Treason Clause in the US Constitution gives the courts the power to hear cases requiring them to determine whether an individual is guilty of "levying war" against the United States. "Levying war" means the assembly of armed people to overthrow the government or to resist its laws.
While treason is a very serious charge, it is rarely prosecuted. This is partly because the definition of treason in the US Constitution is strict, and it can be difficult to prove. For example, in the case of Ex parte Bollman & Swarthout (1807), the Supreme Court dismissed charges of treason against two associates of former Vice President Aaron Burr, who was accused of plotting to overthrow the American government in New Orleans. The Court ruled that their conduct did not constitute "levying war" as it did not involve an actual assemblage of men for the purpose of executing a treasonable design.
In some cases, other charges may be preferred to treason, even when treasonous acts are alleged. For example, federal prosecutors can pursue non-treason charges such as violating the Espionage Act or the Trading with the Enemy Act without needing to satisfy the procedural requirements of the Treason Clause. This was the case in the prosecution of Julius and Ethel Rosenberg, who were charged with conspiracy to commit espionage, not treason, for disclosing atomic secrets to the Soviet Union during World War II.
Other charges that may be brought in addition to or instead of treason include conspiracy, terrorism, and providing material support to a terrorist or terrorist group. The Conspiracies Act of July 31, 1861, was passed to prosecute defiance of the government, and the "second Confiscation Act" of 1862 redefined treason in the context of the Civil War, lessening the punishment for treason and making it possible to give individuals lesser sentences.
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Historical treason trials
Treason is a rare charge, and even more rarely prosecuted. The US Constitution identifies treason as either "levying war" against the state or "adhering to [its] enemies, giving them aid and comfort". Since the US Constitution came into effect in 1789, treason charges have been brought fewer than 30 times.
One of the earliest tests of the US Constitution's Treason Clause came in 1807 with the treason trial of former Vice President Aaron Burr. Burr was accused of plotting to seize the Louisiana Territory and urging some states to leave the Union. He was ultimately acquitted due to a lack of detailed specificity in the 1787 text of the Constitution about any alleged crimes of treason.
Another notable treason trial is that of Julius and Ethel Rosenberg, who were charged with conspiracy to commit espionage for providing atomic secrets to the Soviet Union. They were not charged with treason, but prosecutors and the trial judge often conflated the charges, referring to the Rosenbergs as "traitors" who had committed "treason". The Rosenbergs argued that their convictions violated the Treason Clause, but their argument was rejected. This case established that prosecutors could bring non-treason charges without the procedural safeguards provided by the Treason Clause, even if the conduct could be considered treasonous.
In 1956, 156 people, including Nelson Mandela, were arrested and accused of treason by the apartheid regime of South Africa. This was known as the Treason Trial.
More recently, in 2006, a federal grand jury indicted Adam Gadahn for treason based on his participation in several al-Qaeda propaganda videos. However, Gadahn was killed in a drone strike in 2015 before he could stand trial.
Outside of the US, there have been several notable treason trials throughout history. For example, Meruzhan Artzruni, Lord Prince of Vaspurakan, was executed for conspiring with Shapur II, one of the Great Persian Kings, against his liege-lord, the Armenian King Arsaces II. In 1941, an American citizen named Herbert was charged with treason for espionage work with the German government. He was instructed to obtain a job at a company that made bomb parts and report information back to Germany.
In summary, while treason trials are rare, there have been several notable cases throughout history, both in the US and internationally. These trials often involve allegations of plotting against the state, aiding enemies, or committing espionage.
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Frequently asked questions
Article 3, Section 3 of the US Constitution defines treason as levying war against the United States or adhering to their enemies, giving them aid and comfort.
Some examples of treasonous acts include recruiting for service against the United States, enlisting to serve against the United States, and advocating for the overthrow of the government.
Yes, there have been a few recent cases that involved allegations of treason. For example, the government considered treason charges against former contractor Edward Snowden, and John Walker Lindh, an American citizen who fought for the Taliban, was not charged with treason but was indicted on 10 other charges.
