“Treason”: I Do Not Think It Means What You Think It Means
Treason. It is a powerful word. It connotes ultimate disloyalty, traitorous and dishonorable conduct, as well as an affront to decency and the brotherhood of nationality. It is perhaps one of the most overused, and inaccurately used, words in the English language. However, the word has an important and precise legal and constitutional definition.
To be clear, Edward Snowden did not commit treason. Chelsea Manning did not commit treason. Neither did any of these people: Robert Hanssen, General David Petraeus, General James “Hoss” Cartwright, Bowe Bergdahl, Aldrich Ames, Ana Montes, Reality Winner, or Jonathan Pollard. These actors all committed some significant security violation, from misdemeanor unlawful disclosure of classified information to spying for a foreign power; yet none of them committed “treason.” Erroneous misuse of this precise legal term carries the danger of diluting its meaning over time, and if everything is named as treason, then nothing is — a lesson which was gift-wrapped and handed to successive generations by the framers of the U.S. Constitution.
Prior to the American Revolution, treason was viewed as a personal offense against the Crown of England. The noted jurist William Blackstone, whose commentaries influenced the development of American law more than any other legal scholar, observed a distinction between “petit treason,” connoting disloyalty in personal affairs, and “high treason,” an offense against the King. However, the term “treason” became so widespread it came to encompass a wide range of conduct which was far afield of the original understanding of the term. This definition creep resulted in Edward III’s sponsorship of the Treason Act of 1351, which limited “treason” — specifically high treason — to include a discrete list of acts, including killing the King, Queen, or their eldest Son as well as violating the Queen or the King’s eldest unmarried daughter. Subsequent amendments to the Treason Act defined offenses peculiar to the crown, such as interference with royal succession, or were procedural in nature and inapplicable to the new American democratic republic.
Only the concept of “high treason” was passed on to the Americans in the U.S. Constitution, where it is mentioned 10 times. At one point, it is defined in Article III, Section 3: “only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort” and requires, for conviction, the testimony of two witnesses to the same “overt Act” in furtherance of the treason, or “Confession in open Court.”
The word “only” is a key modifier in the constitutional definition, implying the framers intended a narrow definition — an intent frustrated by colloquial and sloppy usage. The framers clearly did not want “treason” to be weaponized as a political tool. Therefore, ordinary security offenses, such as transmitting classified information or failing to safeguard secrets, do not rise to the level of “treason” absent a showing the transmission of information constitutes “levying war” against the nation or giving aid and comfort to its enemies.
The word “enemy” also has a precise legal definition in this context. It requires a declaration of war, which identifies by name nation-states which constitute enemies of the United States or, at least, a politically-declared open state of hostilities, such as the Vietnam War or the conflict against Al Qaeda authorized by the post-9/11 Authorization for Use of Military Force. Indeed, federal prosecutors considered charging treason against “the American Taliban” John Walker Lindh, but opted for charges easier to prove instead given the difficulty of finding two credible witnesses and that the punishment was unlikely to be very different.
Additionally, the legal element of “enemy,” necessary for a treason prosecution, does not include strategic adversaries against which open states of warfare, declared or undeclared, do not exist, such as Russia, China, Iran, or North Korea. Accordingly, giving aid and comfort to the enemy Japanese in WWII, as the government alleged the infamous and controversial Japanese-American propagandist Tokyo Rose was guilty of doing, constituted treason, but Robert Hanssen’s years-long funneling of sensitive information to the Soviets did not. The common thread among the modern-era (post 1900) treason prosecution is that the person committing treason owed a duty to the United States, even the minimal duty of loyalty imposed by mere lawful presence. To that end, a German factory owner in WWII could not be convicted in U.S. courts of treason for supplying diesel engines to military truck factories because he owed no duty to the United States to begin with.
Many early treason cases, such as those arising out of the Whiskey Rebellion, ended with presidential pardons. Other treason cases were brought for treason against states; indeed, 29 states still maintain treason statutes in their state codes, though they have not been used since the mid-19th century. Most modern cases arise from the activities of Americans during World War II, with perhaps the most famous case being that of Tokyo Rose.
Iva Toguri D’Aquino, who came to be known as “Tokyo Rose” among Allied troops, was an American citizen of Japanese descent who was in Japan visiting a sick relative when war broke out. Pressed into service by her Japanese hosts alongside captive Allied POWs, she reluctantly participated in radio broadcasts and hosted the one-hour radio show The Zero Hour, even as she refused to make statements contrary to U.S. interests. Post-war, D’Aquino was arrested and held by General Douglas MacArthur, who released her after about a year of confinement when unable to substantiate she had aided the Japanese. Upon returning to the United States, she was arrested again in 1948 for the crime of treason. The indictment included eight allegations of providing aid and comfort to the enemy. Her trial resulted in a conviction on one of the alleged eight counts of treason; D’Aquino was fined $10,000 and sentenced to be confined for 10 years, upheld on appeal. She was paroled in 1955 and pardoned by President Ford in 1977. Like D’Aquino, most post-WWII treason convictions were based on conduct pertaining to propaganda.
The Supreme Court removed the guesswork on what constitutes treason in Cramer v. U.S., a 1945 wartime case reversing the conviction of an alleged German saboteur on insufficient evidence. The Court painstakingly dissected the history and meaning of the elements of the federal treason statute, making it clear that merely being seen having a discussion with known German saboteurs was insufficient to support a charge of treason. Justice Jackson, soon to gain additional fame as the lead American Nuremburg prosecutor, noted, “the basic law of treason in this country was framed by men who…were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.” This statement, capturing the inherent tension in the concept of treason, best summarizes why the word must be used meticulously, with precision, not cavalierly or capriciously.
The law of treason is not a new development. Indeed, it enjoys a heritage and lineage rooted deep in English law, with centuries of practice, English statutory refinement, constitutional consideration, and judicial interpretation to inform its true meaning. Having carefully built this castle of precise legal and constitutional terminology, the sand beneath its sturdy walls threatens to erode with casual overuse. There are ample means of describing disloyal conduct which threatens the security of the United States without crumbling the foundations of the concept of treason, painstakingly built over time to describe a specific, precise offense against the sovereign.
Butch Bracknell is a member of Truman National Security Project’s Defense Council. Views expressed are his own.
