The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one. Kawakita v. United States was decided on June 2, While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country.
During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there.
An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. Please help us improve our site! No thank you. LII U. The Haupt Case. The Kawakita Case.
The traditional explanation for why treason charges have vanished is that the Supreme Court in Cramer v. United States made treason so difficult to prove that it was no longer a realistic option for federal prosecutors. But that conventional wisdom is wrong. The Court in Cramer did make treason more difficult to prove than it otherwise could have, but it did not raise the bar so high that treason charges were no longer plausible. Indeed, the federal government pursued nearly a dozen treason prosecutions after the Court decided Cramer —and secured convictions in nearly all of those cases.
As of , there was little reason to believe that treason charges would fall into complete disuse. A better explanation for the disappearance of treason prosecutions comes from another aspect of the Cramer decision. The government in Cramer argued that the Treason Clause should be interpreted leniently so that treason charges could be readily deployed during times of war. This understanding was confirmed a few years later during the prosecution of Julius and Ethel Rosenberg for disclosing atomic secrets to the Soviet Union.
The Rosenbergs were charged with conspiracy to commit espionage, not treason. By , therefore, Rosenberg and Cramer had firmly established that prosecutors could bring non-treason charges without the procedural safeguards provided by the Treason Clause, even if the conduct at issue could plausibly be considered treasonous.
At the same time, Congress passed several new national security laws, including the Internal Security Act of and the Communist Control Act of As the menu of federal crimes expanded, prosecutors had less and less reason to resort to treason charges. Why bother with the two-witness rule or the overt-act requirement when a variety of alternative and substitute offenses exist? Because treason prosecutions have effectively disappeared, one might wonder about the continued relevance of the Treason Clause.
But the Clause should not be relegated to the dustbin of history for at least two reasons. First and foremost, as the indictment against Adam Gadahn demonstrated, treason is not yet completely extinct. And because the Court in Cramer did not in fact make treason impossible to prove, there remains the possibility that treason charges could one day increase in relative frequency.
If that does happen, the Treason Clause sets forth important requirements on how such charges must be proven. Second, while the specific protections set forth in the Treason Clause may be limited to treason prosecutions, the principles underlying the Clause are not. Indeed, they should serve as important reminders about national security cases more generally.
The Framers correctly believed there was a crucial distinction between traitorous actions and treasonous thought. Departing from English common law, which at the time recognized constructive treason, the Constitution required some sort of action before a person could be convicted of treason. That line between conduct and conscience dovetails with First Amendment values, and is one that should be respected beyond the narrow confines of treason. In addition, the Framers recognized that national security offenses are more likely to inflame public passions, and therefore deserve heightened procedural protections.
This insight also extends beyond treason cases, and is one Congress, federal courts, and the public would do well to remember. The Treason Clause is in this sense among the stronger pieces of textual evidence that the courts were to have as much a role in evaluating the existence of certain individual threats to national security as they would in adjudicating any other kind of crime.
Yet while the Treason Clause includes special rules of evidence to help guard against the danger that otherwise peaceful opponents of our government would face false accusations of supporting our enemies, neither the material support statute, nor other comparable federal offenses, contain any such safeguards.
Is it really consistent with the Treason Clause for there to be such a ready way to avoid its protections? For government to be able to achieve the same ends—prosecution for aiding the enemy—without having to encounter any of the hurdles designed to guard against the abuses of such a charge that so concerned the Framers?
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The penalty for high treason is life imprisonment. Finnish law distinguishes between two types of treasonable offences: maanpetos , treachery in war, and valtiopetos , an attack against the constitutional order. The terms maanpetos and valtiopetos are unofficially translated as treason and high treason, respectively.
Both are punishable by imprisonment, and if aggravated, by life imprisonment. Maanpetos translates literally to betrayal of land consists in joining enemy armed forces, making war against Finland , or serving or collaborating with the enemy. Maanpetos proper can only be committed under conditions of war or the threat of war. Espionage, disclosure of a national secret, and certain other related offences are separately defined under the same rubric in the Finnish criminal code. Valtiopetos translates literally to betrayal of state consists in using violence or the threat of violence, or unconstitutional means, to bring about the overthrow of the Finnish constitution or to overthrow the president, cabinet or parliament or to prevent them from performing their functions.
Article  of the French Penal Code defines treason as follows:. The acts defined by articles to —11 constitute treason where they are committed by a French national or a soldier in the service of France, and constitute espionage where they are committed by any other person. Article prohibits "handing over troops belonging to the French armed forces , or all or part of the national territory, to a foreign power, to a foreign organisation or to an organisation under foreign control, or to their agents".
Generally parole is not available until 18 years of a life sentence have elapsed. Articles —3 to —10 define various other crimes of collaboration with the enemy, sabotage, and the like. These are punishable with imprisonment for between seven and 30 years.
Article make it a crime to incite any of the above crimes. Besides treason and espionage, there are many other crimes dealing with national security, insurrection, terrorism and so on. These are all to be found in Book IV of the code. German law differentiates between two types of treason: "High treason" Hochverrat and "treason" Landesverrat. High treason, as defined in Section 81  of the German criminal code is defined as a violent attempt against the existence or the constitutional order of the Federal Republic of Germany , carrying a penalty of life imprisonment or a fixed term of at least ten years.
In less serious cases, the penalty is 1—10 years in prison. German criminal law also criminalises high treason against a German state. Preparation of either types of the crime is criminal and carries a penalty of up to five years. The other type of treason, Landesverrat is defined in Section The crime carries a penalty of one to fifteen years in prison.
However, in especially severe cases, life imprisonment or any term of at least of five years may be sentenced. On July , Germany's Public Prosecutor General Harald Range initiated criminal investigation proceedings against the German blog netzpolitik. Section 2 of the Crime Ordinance provides that levying war against the Government of the Hong Kong Special Administrative Region of the People's Republic of China, conspiring to do so, instigating a foreigner to invade Hong Kong, or assisting any public enemy at war with the HKSAR Government, is treason, punishable with life imprisonment.
Article 39 of the Constitution of Ireland adopted in states:. Following the enactment of the constitution, the Treason Act provided for imposition of the death penalty for treason. The Italian law defines various types of crimes that could be generally described as treason tradimento , although they are so many and so precisely defined that no one of them is simply called tradimento in the text of Codice Penale Italian Criminal Code.
Articles to detail crimes against the "international personhood of the State" such as "attempt against wholeness, independence and unity of the State " art. Articles to detail crimes against the "domestic personhood of the State", ranging from "attempt on the President of the Republic " art. Further articles detail other crimes, especially those of conspiracy, such as " political conspiracy through association" art.
The penalties for treason-type crimes before the abolition of the monarchy in included death as maximum penalty and, for some crimes, as the only penalty possible. Nowadays the maximum penalty is life imprisonment ergastolo. Japan does not technically have a law of treason. The law applies equally to Japanese and non-Japanese people, while treason in other countries usually applies only to their own citizens.
Technically there are two laws, one for the crime of inviting foreign mischief Japan Criminal Code section 2 clause 81 and the other for supporting foreign mischief once a foreign force has invaded Japan. Before World War II , Imperial Japan had a crime similar to the English crime of high treason Taigyaku zai , which applied to anyone who harmed the Japanese emperor or imperial family.
The application of "Crimes Related to Insurrection" to the Aum Shinrikyo cult of religious terrorists was considered. New Zealand has treason laws that are stipulated under the Crimes Act Section 73 of the Crimes Act reads as follows:. The penalty is life imprisonment , except for conspiracy, for which the maximum sentence is 14 years' imprisonment.
Treason was the last capital crime in New Zealand law , with the death penalty not being revoked until , years after it was abolished for murder. Very few people have been prosecuted for the act of treason in New Zealand and none have been prosecuted in recent years. Article 85 of the Constitution of Norway states that "[a]ny person who obeys an order the purpose of which is to disturb the liberty and security of the Storting [Parliament] is thereby guilty of treason against the country.
Article of the Criminal Code of Russia  defines treason as "espionage, disclosure of state secrets, or any other assistance rendered to a foreign State, a foreign organization, or their representatives in hostile activities to the detriment of the external security of the Russian Federation , committed by a citizen of the Russian Federation. It is not a capital offence, even though murder and some aggravated forms of attempted murder are although Russia currently has a moratorium on the death penalty.
Subsequent sections provide for further offences against state security, such as armed rebellion and forcible seizure of power. According to Article 87 of the Criminal Code of South Korea , "a person who creates a violence for the purpose of usurping the national territory or subverting the Constitution" can be found guilty of treason.
Sweden's treason laws have seen little application in modern times. The most recent case was in Four teenagers their names were not reported were convicted of treason after they assaulted King Carl XVI Gustaf with a strawberry cream cake on 6 September that year.
They were fined between 80 and days' income. There is no single crime of treason in Swiss law ; instead, multiple criminal prohibitions apply. Whoever commits an act with the objective of violently — changing the constitution of the Confederation or of a canton , — removing the constitutional authorities of the state from office or making them unable to exercise their authority, — separating Swiss territory from the Confederation or territory from a canton, shall be punished with imprisonment of no less than a year.
Whoever makes known or accessible a secret, the preservation of which is required in the interest of the Confederation, to a foreign state or its agents, Whoever makes known or accessible a secret, the preservation of which is required in the interest of the Confederation, to the public, shall be punished with imprisonment of up to five years or a monetary penalty. In , in the context of the Cold War , the following prohibition of "foreign enterprises against the security of Switzerland" was introduced as article bis :.
The criminal code also prohibits, among other acts, the suppression or falsification of legal documents or evidence relevant to the international relations of Switzerland art. The Swiss military criminal code contains additional prohibitions under the general title of "treason", which also apply to civilians, or which in times of war civilians are also or may by executive decision be made subject to.
These include espionage or transmission of secrets to a foreign power art. The penalties for these crimes vary, but include life imprisonment in some cases. Treason per se is not defined in the Turkish Penal Code. However, the law defines crimes which are traditionally included in the scope of treason, such as cooperating with the enemy during wartime.
Treason is punishable by imprisonment up to life. The British law of treason is entirely statutory and has been so since the Treason Act 25 Edw. The Act is written in Norman French , but is more commonly cited in its English translation.
The Treason Act has since been amended several times, and currently provides for four categories of treasonable offences, namely:. Another Act, the Treason Act 1 Anne stat. By virtue of the Treason Act , the law of treason in Scotland is the same as the law in England, save that in Scotland the slaying of the Lords of Session and Lords of Justiciary and counterfeiting the Great Seal of Scotland remain treason under sections 11 and 12 of the Treason Act respectively.
Two acts of the former Parliament of Ireland passed in and create further treasons which apply in Northern Ireland. The penalty for treason was changed from death to a maximum of imprisonment for life in under the Crime And Disorder Act. Since the abolition of the death penalty for murder in an execution for treason was unlikely to have been carried out.
Treason laws were used against Irish insurgents before Irish independence. However, members of the Provisional IRA and other militant republican groups were not prosecuted or executed for treason for levying war against the British government during the Troubles. They, along with members of loyalist paramilitary groups, were jailed for murder , violent crimes or terrorist offences. William Joyce " Lord Haw-Haw " was the last person to be put to death for treason, in On the following day Theodore Schurch was executed for treachery , a similar crime, and was the last man to be executed for a crime other than murder in the UK.
As to who can commit treason, it depends on the ancient notion of allegiance. As such, all British nationals but not other Commonwealth citizens owe allegiance to the Queen in right of the United Kingdom wherever they may be, as do Commonwealth citizens and aliens present in the United Kingdom at the time of the treasonable act except diplomats and foreign invading forces , those who hold a British passport however obtained, and aliens who — having lived in Britain and gone abroad again — have left behind family and belongings.
The Treason Act enacted, among other things, a rule that treason could be proved only in a trial by the evidence of two witnesses to the same offence. Nearly one hundred years later this rule was incorporated into the U. Constitution ,  which requires two witnesses to the same overt act. It also provided for a three-year time limit on bringing prosecutions for treason except for assassinating the king , another rule which has been imitated in some common law countries.
The Sedition Act made it treason to imprison, restrain or wound the king. Although this law was abolished in the United Kingdom in , it still continues to apply in some Commonwealth countries. The offense of treason exists at both federal and state levels. The federal crime is defined in the Constitution as either levying war against the United States or adhering to its enemies, and carries a sentence of death or imprisonment and fine.
In the s, opposition political parties were new and not fully accepted. Government leaders often considered their opponents to be traitors. Historian Ron Chernow reports that Secretary of the Treasury Alexander Hamilton and President George Washington "regarded much of the criticism fired at their administration as disloyal, even treasonous, in nature.
To avoid the abuses of the English law, the scope of treason was specifically restricted in the United States Constitution. Article III , section 3 reads as follows:. 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 Constitution does not itself create the offense; it only restricts the definition the first paragraph , permits the United States Congress to create the offense, and restricts any punishment for treason to only the convicted the second paragraph.
The crime is prohibited by legislation passed by Congress. The requirement of testimony of two witnesses was inherited from the British Treason Act However, Congress has passed laws creating related offenses that punish conduct that undermines the government or the national security, such as sedition in the Alien and Sedition Acts , or espionage and sedition in the Espionage Act of , which do not require the testimony of two witnesses and have a much broader definition than Article Three treason.
Some of these laws are still in effect. The well-known spies Julius and Ethel Rosenberg were charged with conspiracy to commit espionage, rather than treason. In the United States, Benedict Arnold 's name is considered synonymous with treason due to his collaboration with the British during the American Revolutionary War. This, however, occurred before the Constitution was written. Arnold became a general in the British Army, which protected him.
Since the Constitution came into effect, there have been fewer than 40 federal prosecutions for treason and even fewer convictions. Several men were convicted of treason in connection with the Whiskey Rebellion but were pardoned by President George Washington. The most famous treason trial, that of Aaron Burr in , resulted in acquittal. The only physical evidence presented to the grand jury was General James Wilkinson 's so-called letter from Burr, which proposed the idea of stealing land in the Louisiana Purchase.
Since no witnesses testified, Burr was acquitted in spite of the full force of Jefferson's political influence thrown against him. Immediately afterward, Burr was tried on a misdemeanor charge and was again acquitted. During the American Civil War , treason trials were held in Indianapolis against Copperheads for conspiring with the Confederacy against the United States.
Various legislation was passed, including the Conspiracies Act of July 31, Because the law defining treason in the constitution was so strict, new legislation was necessary to prosecute defiance of the government. In addition to the Conspiracies Act of July 31, , in , the federal government went further to redefine treason in the context of the civil war. The act that was passed is entitled "An Act to Suppress Insurrection; to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other purposes".
It is colloquially referred to as the "second Confiscation Act". The act essentially lessened the punishment for treason. Rather than have death as the only possible punishment for treason, the act made it possible to give individuals lesser sentences. After the Civil War the question was whether the United States government would make indictments for treason against leaders of the Confederate States of America , as many people demanded.
Jefferson Davis , the President of the Confederate States , was indicted and held in prison for two years. The indictments were dropped on February 11, , following the blanket amnesty noted below. Ulysses S. Grant assured all Confederate soldiers and officers a blanket amnesty , provided they returned to their homes and refrained from any further acts of hostility, and subsequently other Union generals issued similar terms of amnesty when accepting Confederate surrenders.
In Iva Toguri D'Aquino was convicted of treason for wartime Radio Tokyo broadcasts under the name of "Tokyo Rose" and sentenced to ten years, of which she served six. As a result of prosecution witnesses having lied under oath, she was pardoned in In Tomoya Kawakita , a Japanese-American dual citizen was convicted of treason and sentenced to death for having worked as an interpreter at a Japanese POW camp and having mistreated American prisoners.
He was recognized by a former prisoner at a department store in after having returned to the United States. He was released and deported in The Cold War saw frequent talk linking treason with support for Communist -led causes. The most memorable of these came from Senator Joseph McCarthy , who used rhetoric about the Democrats as guilty of "twenty years of treason".
As chosen chair of the Senate Permanent Investigations Subcommittee , McCarthy also investigated various government agencies for Soviet spy rings; however, he acted as a political fact-finder rather than a criminal prosecutor. The Cold War period saw no prosecutions for explicit treason, but there were convictions and even executions for conspiracy to commit espionage on behalf of the Soviet Union , such as in the Julius and Ethel Rosenberg case. On October 11, , the United States government charged Adam Yahiye Gadahn for videos in which he appeared as a spokesman for al-Qaeda and threatened attacks on American soil.
Most states have treason provisions in their constitutions or statutes similar to those in the U. The Extradition Clause specifically defines treason as an extraditable offense. Thomas Jefferson in said that any Virginia official who cooperated with the federal Bank of the United States proposed by Alexander Hamilton was guilty of "treason" against the state of Virginia and should be executed.
Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions. Conspiring to levy war was distinct from actually levying war. The Court construed the other treason offense authorized by the Constitution similarly narrowly in Cramer v. United States That case involved another infamous incident in American history: the Nazi Saboteur Affair.
Cramer was prosecuted for treason for allegedly helping German soldiers who had surreptitiously infiltrated American soil during World War II. On the other hand, a citizen may take actions which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which 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 also narrowed the scope of punishment for treason as compared to English common law. Under the Constitution, that punishment may not extend beyond the life of the person convicted of treason. Treason prosecutions have essentially disappeared. Although treason was never a popular charge for federal prosecutors, treason prosecutions attended nearly every armed conflict in American history up to and including the Second World War.
Since , however, only one person has been charged with treason against the United States. And that single instance was relatively unusual: in , a federal grand jury indicted Adam Gadahn for treason based on his participation in several al-Qaeda propaganda videos. Gadahn was not in custody at the time of his indictment, and he was later killed in a drone strike in Pakistan before he could stand trial in the United States.
The traditional explanation for why treason charges have vanished is that the Supreme Court in Cramer v. United States made treason so difficult to prove that it was no longer a realistic option for federal prosecutors. But that conventional wisdom is wrong. The Court in Cramer did make treason more difficult to prove than it otherwise could have, but it did not raise the bar so high that treason charges were no longer plausible.
Indeed, the federal government pursued nearly a dozen treason prosecutions after the Court decided Cramer —and secured convictions in nearly all of those cases. As of , there was little reason to believe that treason charges would fall into complete disuse.
A better explanation for the disappearance of treason prosecutions comes from another aspect of the Cramer decision. The government in Cramer argued that the Treason Clause should be interpreted leniently so that treason charges could be readily deployed during times of war. This understanding was confirmed a few years later during the prosecution of Julius and Ethel Rosenberg for disclosing atomic secrets to the Soviet Union.
The Rosenbergs were charged with conspiracy to commit espionage, not treason. By , therefore, Rosenberg and Cramer had firmly established that prosecutors could bring non-treason charges without the procedural safeguards provided by the Treason Clause, even if the conduct at issue could plausibly be considered treasonous. At the same time, Congress passed several new national security laws, including the Internal Security Act of and the Communist Control Act of As the menu of federal crimes expanded, prosecutors had less and less reason to resort to treason charges.
Why bother with the two-witness rule or the overt-act requirement when a variety of alternative and substitute offenses exist? Because treason prosecutions have effectively disappeared, one might wonder about the continued relevance of the Treason Clause. But the Clause should not be relegated to the dustbin of history for at least two reasons.