“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.” (Constitution of the United States of America, Art. III, Sec. 3, Par. 1)
Not until 1945 did the Supreme Court of the United States review a treason conviction. Cramer v. United States[i] was the first. Seven other cases followed, two in the Supreme Court and five in United States Courts of Appeal: Haupt v. United States,[ii] Chandler v. United States,[iii] Gillars v. United States,[iv] Best v. United States,[v] Burgman v. United States,[vi] D’Aquino v. United States,[vii] and Kawakita v. United States.[viii]
Cumulatively, in these eight decisions arising from World War II, the Supreme Court of the United States established that for a prosecutor to take an “aid and comfort” treason indictment to a jury he must prove four elements beyond a reasonable doubt: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act providing aid and comfort to the enemy.
The first three elements of the crime are not difficult to identify because they are objective. Hiding money belonging to a saboteur, surveilling a defense plant, broadcasting enemy propaganda, and torturing American prisoners of war are all manifestly overt acts. Two-witness proof—for example, from Tomoya Kawakita’s victims in Japan and Jane Fonda’s American POWs in North Vietnam—is also objective. As is the intent to betray, in cases where rogue CIA and FBI agents spied for the Soviet Union.
The final element of a treason case is that the defendant’s conduct provided “aid and comfort” to an enemy of the United States. In Cramer, the Supreme Court observed that “[t]he very minimum function that an overt act must perform in a treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.”[ix] The same was true in Chandler where the First Circuit Court of Appeals had to decide whether the prosecution had adduced enough evidence from which the jury could reasonably have concluded that Chandler’s overt act(s) had provided the constitutionally requisite “aid and comfort” to the Nazi regime. Chandler claimed that not one of the alleged overt acts—by themselves—provided aid and comfort to the Nazi’s goals.
The Court of Appeals disagreed:
Possibly the overt acts, viewed in rigid isolation and apart from their setting, would not indicate that they afforded aid and comfort to the enemy. But viewed in their setting, which is set forth above . . . they certainly take on incriminating significance. They then appear as typical routine activities of Chandler in fulfillment of the purpose of his continuous employment as radio commentator for the German Propaganda Ministry over a period of three years. The enemy’s mission which Chandler participated in forwarding—the objective of the German Short Wave radio program beamed to the United States—also appears as part of the setting. It was an obvious advantage to the enemy in the execution of that program to have the open assistance of a cultivated and widely traveled American citizen like Chandler. That the enemy deemed Chandler’s services to be of aid and comfort is attested by the high salary which they paid him. These services consisted not merely of the culminating act of making a recording, but also of the necessary preliminary acts directed to that end. They were all part and parcel of the totality of aid and comfort given by the course of conduct as a whole. Attending a conference of commentators, at the summons of the Chief of the U.S.A. Zone, in order that directives as to the current propaganda line might be relayed and discussed and individual assignments made, could reasonably be found to have been of aid and comfort to the enemy. The proof under overt acts 4 and 5 established Chandler’s participation in two such conferences. And certainly the making of recordings by Chandler, on the occasions proved under overt acts 17 and 18, warranted findings that Chandler gave aid and comfort to the enemy. The evidence under overt act 17 showed two recordings by Chandler on the same occasion: one a recording for his regular Paul Revere broadcasts, and another a recording of a special mixed program of poetry and music. The evidence under overt act 18 showed the making of a dialogue recording by Chandler and one Sittler, who was employed as a translator in the U.S.A. Zone.[x]
At this point it is useful to repeat the constitutional definition of treason: “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.”[xi]
The “levying war” prong of the treason crime has been italicized because it is much misunderstood. It is popularly, and erroneously, believed that a “levying war” charge requires that the United States actually be at war. For example, when people considered Taliban John Walker-Lindh’s activities with the Taliban and al-Qaeda in Afghanistan— as a member of armed forces with which the United States was not formally at war—the question was often asked as to whether one can be convicted of treason absent a formal declaration of war.
The answer is yes.
Historically, neither the text of the A.D. 1350 English Statute of Edward III—the genesis of our Constitutional law of treason—nor any of the commentary interpreting that venerable law, nor for that matter the statute’s historical application, suggest that a formally declared war is a necessary element of the crime of treason. Indeed, the statute’s historical preoccupation was with protection of the monarch from domestic, as well as foreign, enemies, and thus the history indicates that a declared state of war (however that would have defined in the Fourteenth Century) was not a necessary element.
Additionally, the text of Article III, Section 3, paragraph 1, of the Constitution of the United States—in providing that “[T]reason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort””[xii]—clearly confines the “war” element to the “levying” prong of the crime, and makes that element inapplicable to the “or adhering” prong. This interpretation is borne out by two early cases.
The first was the notorious episode involving Aaron Burr, one of the most interesting characters of the post-colonial period. Thomas Jefferson and Burr were tied for election to the presidency in December 1801. The House of Representatives elected Jefferson, and Burr became Vice President. He was not a happy Vice President. Though a Republican, Burr not only later made common cause with his party’s opponents, the Federalists, but he conspired against the United States government itself. The “Burr Conspiracy,” born at the end of his vice presidency, consisted of a bold plan to “’liberate’ Mexico from Spain, and at the same time make Louisiana an independent republic, which Mississippi Territory would surely decide to join.”[xiii]
During preparation of the conspiracy, a confederate betrayed Burr to President Jefferson. Even though the United States was not at war with any other nation at that time, Burr was charged with the “levying war” prong of the treason crime.
Thus, if in time of non-war a person, like Burr, can be charged with the “levying war” prong of the treason crime, one can be surely charged with the “adhering” prong during cold war and hostilities. Indeed, no one can reasonably doubt that Jane Fonda could have been indicted for, and convicted of, treason for her conduct in North Vietnam even though the United States was not formally at war with the Asian Communists.
The second case, in the Supreme Court of the United States, occurred in 1863, and arose out of the Civil War:
On the fifteenth day of March, 1863, the schooner J. M. Chapman was seized in the harbor of San Francisco, by the United States revenue officers, while sailing, or about to sail, on a cruise in the service of the Confederate States, against the United States; and the leaders . . . [including Greathouse] were indicted . . . for engaging in, and giving aid and comfort, to the then existing rebellion against the government of the United States.[xiv]
Since Greathouse, like Burr, appeared to be a “levying war” case, the actual legal question before the Court was not whether in an “adhering” case a declared war was a necessary prerequisite for indictment and conviction. However, in language appearing in Justice Field’s discussion of the concept “enemies,” the Greathouse Court did have something to say about the concept of “war.” According to Field, “The term ‘enemies,’ as used in the second clause [of the Constitutional treason provision], according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us.”[xv]
Justice Field’s words were written only seventy-six years after adoption of the Constitution. He knew his constitutional history, and he chose his words carefully. If, in Justice Field’s discussion of the status of a “foreign power” in relation to the United States, he meant to refer to “war,” he certainly would have done so. Instead, the Supreme Court Justice chose the word “hostility,” denoting a very different relationship: one not of war. Accordingly, based on the background of English, colonial, constitutional, and post-constitutional decisional history, the absence of a formal declaration of war is no impediment to a charge of treason.
That being so, it is important to understand something else very important about the crime of treason.
First, because treason is the only crime defined in the Constitution, conduct constituting that crime should be taken seriously—and other than by prosecuting, there is no other way to do that.
Second, it is very much the purpose and function of the law, in certain circumstances, to make moral statements, as do many of our statutes and common law doctrines. Criminal laws punishing everything from homicide to shoplifting come to mind, as do civil laws providing recompense for everything from breached contracts to intentional infliction of emotional distress. Indeed, underlying the award of punitive damages is the punishment of civil wrongdoers—certainly a moral statement.
Third, an important aspect of prosecuting (and, even better, convicting) someone, say Jane Fonda, for treason, is to provide vindication for those who have suffered from the treasonous acts. Although the purpose of the criminal law is often thought to vindicate “society,” that in reality is nothing more than many individuals. “Society” did not have its morale weakened by the broadcasts of Axis Sally and Tokyo Rose. “Society” did not endure the torture of the North Vietnam Communists. Individuals did—and it is they who must be vindicated. Indeed, even today countless veterans feel that their government let them down by never prosecuting Fonda and her cohorts who gave aid and comfort to the enemy during the Vietnam War. They suffered, and she prospered.
This piece was authored by Henry Mark Holzer on September 19, 2005.
[i] 325 U.S. 1 (1945). Cramer aided a Nazi U-boat saboteur.
[ii] 330 U.S. 631 (1947). Haupt aided his son, a Nazi U-boat saboteur.
[iii] 171 F.2d 921 (1st Cir. 1948). Chandler broadcast Nazi propaganda from Germany.
[iv] 182 F.2d 962 (1950). Gillars broadcast Nazi propaganda from Germany.
[v] 184 F.2d 131 (1st Cir. 1950). Best broadcast Nazi propaganda from Germany
[vi] 188 F.2d 637 (D.C. Cir. 1951). Burgman broadcast Nazi propaganda from Germany.
[vii] 192 F.2d 338 (9th Cir. 1951). D’Aquino broadcast Japanese propaganda from Japan.
[viii] 343 U.S. 717 (1952). Kawakita abused American prisoners of war in Japan.
[ix] 325 U.S. at 34.
[x] 171 F. 2d at 941
[xi] Emphasis added.
[xii] Emphasis added.
[xiii] Samuel Eliot Morrison, The Oxford History of the American People, 369.
[xiv] 26 Federal Cases, at 18.
[xv] 26 Federal Cases, at 22; emphasis added.