July 14, 2009 by drkate4justice
The first part of this essay presented the Constitutional definition of treason against the United States:
- Actual waging of war against them
- Adhering to their enemies; giving their enemies aid and comfort
The Constitution also specified that no person could be convicted of treason unless there were two testifying witnesses or upon confession in open court.
I marvel at the ‘preciseness and flexibility’ of these words. The Founders expected that the practical lessons of history would inform the use of these words and concepts appropriately as our Republic evolved.
Building on the first part of this essay on treason, this discussion first presents a brief review of how the Supreme Court has interpreted and applied ‘treason’ in various cases. The cases provide more ‘direction’ regarding the need for two witnesses and what may be considered as evidence for treason, and reveal an interesting tension between the Court and Congress regarding what ‘behaviors’ can be considered treasonous. Some implications and practical applications of this information follow.
I am thankful to jbjd for taking a critical look at the first essay and enabling the update of this article with a 2006 charge of treason against an American citizen, the first case on treason to be brought before SCOTUS in 50 years. An astute reader pointed out that this individual is believed to have been recently killed in Pakistan in a drone missile attack.
Legal Framework & Examples
The Supreme Court sustained a conviction of treason for the first time in its history in 1947 in Haupt v. United States:
Haupt, a naturalized United States citizen of German origin, was the father of one of the German saboteurs landed secretly by submarine in this country in June, 1942. When the son came to Chicago, defendant gave him shelter for several days in the building in which defendant lived, accompanied him on visits to foremen of a war-materials plant so that the son might seek employment there in furtherance of his mission, and accompanied and assisted him in buying an automobile which the son needed for the activities of his sabotage group; defendant’s admissions to federal agents after his arrest and his statements to fellow prisoners in jail, established that he knew of and sympathized with his son’s sabotage mission.
Here it was held that although the acts relied upon to support the charge of treason were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Continuing,
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative.
This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:
As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.
The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.
In the 1945 case Cramer v. United States, the actual form of the restrictive interpretation of treason in the constitution was determined. The case opined that this historic policy should be viewed as taking two forms: it both bans the addition of new categories of subversive conduct to the two branches of “treason” stated in the Constitution, and limits the kinds of conduct which may be charged under either of those two branches.
The Haupt decision holds that an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one.
If Cramer banned the addition of new categories of subversive conduct to the two branches of treason in the constitution, then the charges of treason being leveled by Krugman and by Congress at millions of American citizens are completely scurrilous.
After the Supreme Court decided Cramer v. United States, World War II produced ten more reported treason prosecutions pressed to conviction. One of these cases involved the conviction of Tokyo Rose, in 1952, who was later pardoned and died in 2006.
In seven of these cases court opinions dealt with substantive and procedural doctrine concerning the elements of treason and the manner of proving it. Two of these cases, Chandler v. United States, decided by the First Circuit Court of Appeals in 1948, and Kawakita v. United States, decided by the Supreme Court in 1942 — have leading importance for the development of treason doctrine.
Chandler was an American citizen living in Europe at the outbreak of World War II and volunteered his services to the German government in continuing a war time propaganda program, among other things. Kawakita was a 14th Amendment U.S. citizen and also a Japanese national who worked for the Japanese government during World War II and abused American POW’s sent to work under his command.
Along with Haupt, all of these defendants — Haupt, Chandler, and Kawakita — were ruled to have been guilty of overt acts which aided an enemy of the United States, with intent to adhere to the enemy’s cause.
In 2006, the United States brought its first treason charge in over 50 years against an American citizen, Adam Gadahn, 28, who is considered a fugitive and believed to be in Pakistan. Gadahn is believed to have been killed after having appeared in a recent anti-Israel, anti-U.S. video as the “American al Qaeda”. According to the Justice Department charges,
Gadahn appeared in five videos broadcast between October 2004 and Sept. 11, 2006, giving al Qaeda “aid and comfort … with the intent to betray the United States.” “Gadahn gave himself to our enemies in al Qaeda for the purpose of being a central part of their propaganda machine,” Deputy Attorney General Paul McNulty told a news conference. “By making this choice, we believe Gadahn committed treason — perhaps the most serious offense for which any person can be tried under our Constitution,” he said. McNulty acknowledged that Gadahn appeared to be involved only in propaganda for the Islamic militant group, not in planning any attacks.
Observations & Implications
Through a brief reading of the history of treason in the United States, it appears that there is a tension between the Court’s reliance on the limited definition of treason offered in the Constitution and the Congressional desire to label other behaviors as treasonous. The Supreme Court ruled in Haupt that:
Congress may not vary the elements of treason or escape the substantive constitutional definition or the requirement of two witnesses to the same overt act by attaching a different label to ‘levying war or adhering to an enemy’
In this context it appears that Congress and the Executive cannot create additional behaviors that are considered treasonous. This means it agencies, including the Department of Homeland Security, cannot create out of thin air a reason to call dissenters ‘anti-government terrorists’, which as an American, is pretty close to calling me treasonous.
Destroying first amendment rights is a gateway to treason charges. In my view, the misnamed ‘hate crimes legislation’ comes very close to curtailing free speech, not stopping hate. If free speech exercised in defense of our country is labeled as hate, treason, traitorous, or racist, then the line has been crossed..
The Educated Offense
Rather than react to the obot-in-chief and his minions as they throw accusation after accusation at American patriots for daring to dissent, we have become educated and can certainly respond proactively.
On being accused of treason for dissent, say regarding taxes, its simple, really: you are not waging war on the states, and, you are not giving aid to the enemy of the country and constitution. Further, neither the Congress, the President, or its agencies can create new classes of behavior and classify them as treasonous. End of story.
Regarding leveling a treason charge, be careful: it is a different term than the words “high crimes and misdemeanors”, “lawlessness”, “violations or abrogations of duty under the constitution”, “sedition”….and a dozen other terms. I hope to explore these concepts in coming essays.
Our Constitution requires us to use history as a guide and to apply these terms to our present situation. In the case of treason, as defined in the constitution, what actions today constitute (a) war upon the states, and (b) adhering to or giving aid and comfort to our enemies?
Some concerns I have about waging war on the states have to do with what I perceive as forms of warfare in the economic, health, and free speech area; certainly the declaration of martial law –if not approved by the states– could be considered the making of actual war on the states. A question I have is whether the deliberate reduction of our national defense by TOTUS will enable the enemy to wage war against us, and whether that would be considered treason? Under what category does behavior that risks our national defense fall?
Regarding the provision of aid and comfort to the enemy or adhering to to our enemies, I can think of nothing more important than Obama’s dual or triple citizenship status and why the Founding Fathers specified that only a ‘natural born citizen’ should be POTUS.
Is apologizing for America’s existence to our enemies “providing aid and comfort to our enemies”? How about placement and funding of GITMO prisoners in American communities or American jails? How about bowing to the Saudi King? How about being bribed by other countries? Obama identifies with other parts of the world and is conflicted in defending the United States. In so doing, he imperils our country. Is this treason?
I am interested to know what you think.
One Last Note!
For more than a year, this blog, all of the blogs on the roll on the right, and all of TD’s readers and writers have been sounding the alarm, riding that horse in the dead of night, shouting, that a storm of unknown magnitude is upon us.
“A nation can survive its fools and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable for he is known and carries his banners openly. But the traitor moves among those within the gates freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself… for the traitor appears no traitor: He speaks in accents familiar to his victims, and he wears their faces and their garments, he appeals to the baseless that lies deep in the souls of all men. He rots the soul of a nation; he works secretly and unknown in the night to undermine the pillars of the city; he infects the body politic so that it can no longer resist. A murderer is to be less feared.” ~ Cicero
This storm is upon us now, make no mistake. But nothing is inevitable for America, because love of country has, can, and will change all. It is just a matter of time.
In case you’re wondering, the Liberty Bell below is calling you, me, and all of America. The ‘prettiest sound on earth’ is the ring of freedom.