Title: Excerpt of Military Law Review Vol 30

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICAManning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 22211Government Targeted BriefOn Receipt of Intelligenceas a Requirement ofAiding the EnerayEndosure 429 March 2013M -toAPPELLATE EXHIBIT 5(0PAGE REFERENCED:PAGEOFPAGESDEPARTMENT OF THE ARMY PAMPHLET27-100-30MILITARY LAWREVIEWVoL30.ArticlesNUCLEAR WEAPONS AS A LAWFUL MEANSCaptain Fred Bright, Jr.TREASOS AND .AIDING THE ENEMYCaplain Jabez IV. Loane, I VTHE SIGNIFICANCE OFTHE JENCKS ACT IN MILITARY LAWMajor Luther C. West\CommentsASSASSINATION IN WAR TIMELEGAL SUPPORT REQUIRESIENTS FOR CIVIL AFF- IRSOPERATIONS IN COUNTERISSURGENCYSOME OBSERVATIONS ON LESSER INCLUDED OFFENSES[HEADQUARTERS, DEPARTMENT OF THE ARMYOCTOBER 19651TREASON AND AIDING THE ENEMY*BY CAPTAIN JABEZ W . LOANE,I.IV**INTRODUCTIONIt has been said that no crime is greater;' it has been termed. . the most serious offense that may be committed against theUnited States;" ^ it has been classified as "the highest of allcrimes." ^ Chief Justice Marshall once commented: "As there isno crime which can more excite and agitate the passions of men,no charge demands more from the tribunal before which it ismade a deliberate and temperate inquiry." * All of these quotations refer to the same offense — the crime of treason.It i& a crime which, in many ways, is set apart from all others.It is the only crime specifically denounced by the Constitution ofthe United States.^ It is the only federal crime upon which conviction must be predicated on the testimony of two eye-witnessesto the overt act of the oflense.6 I t may only be committed in timeof war or quasi war since it must be predicated either in levyingwar against the United States or in aiding an "enemy." It is theonly crime which, i f successfully committed, may cease to be acrime. As Sir John Harrington noted:Treason doth never prosper; what's the reason? Why, i f it prosper,none dare call it treason.'* This article was adapted from a thesis presented to The Judge AdvocateGeneral's School, U.S.Army, Charlottesville, Virginia, while the author wasa member of the Thirteenth Career Course. The opinions and conclusionspresented herein are those of the author and do not necessarily representthe views of The Judge Advocate General's School or any other governmental agency.JAGC, U. S. Array; Office of the Staff Judge Advocate, Hq, U. S. Army,Europe; A.B., 1953, Duke University; LL.B,, 1956, University of Maryland;Member of the Bars of the State of Maryland, the United States SupremeCourt, and the United States Court of Military Appeals.' Hanauer v. Doane, 79 U.S. (12 Wall.) 342, 347 (1870).'Stephen v. United States, 133 F.2d 87, 90 (6th Cir.), cerf. denied, 318U.S.781 (1943)."Charge to Grand Jury, 30 Fed. Cas. 1024, 1025 (No. 18269) (CCD.Mass. 1851)." Marshall, C. J., in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 125 (1807).' U. S. CONST, art. I l l , § 3.^ Ibid. This assumes, of course, a plea other than guilty. However, itshould be noted that some states require two witnesses to any crime punishable by death. See State v. Chin Lung, 106 Conn. 701, 139 A. 91 (1929).'FAMILIAR QUOTATIONS 29 (12th ed. Morley Ed., 1951).AGO 6364B43^0 MILITARY LAWREVIE^^Throughout tbeages tbe motivations fortreasonbavebeen as^numerous as tbecrimes themselves Some haye committed treasonfor money, some for pride, power, or prestige, some for moi^eelusive ideological goals. In medieval England, wbei^e our exploration of tbe law begins, tbe treason cases generally dealtwitb machinations against tbe monarch or in plotting to altertbe succession to tbe throne. In tbe days of Elizabeth I , tbec^.^esdeveloped areligious,flavor. In later years, tbefactors bave included financial gainorpolitieal conviction.Today tbe suggestionbas been advanced tbat tbe modern scientist, because of tbeuniversality of bis technical knowledge, feels himself under alesser duty to obey national loyalty,^Tbe annals of treason bave tainted tbe rich and poor alike;tbepowerfnlas well astbecommon citizen. Through its historybave passed sucbnotablefigures as Thomas Becket, Sir WalterRaleigb, Anne Boleyu, SirTbomas More, Benedict Arnold, andJefferson Davis; it bas included sucb strange personalities asGuyFawkes, Jobn Brown, William Joyce and E^ra Pound. Anditbasencompassedtbeunnumberedbundredswbopassedtbrougbtbe musty volumes of tbe State Trials^ on tbeir way to tbe"usual punisbment"and oblivion.It is not tbe purpose of tbis article to examine tbese individualsindeptb or tbe details of tbe "offenses" wbicbbrougbt tbem totrial. Ratberit is intendedto explore tbebistorical developmentof tbe ciyil offense of treason and tbe parallel military offenseof aiding tbe enemy; to compare tbetwo; and to consider tbedefenses to tbe respective offenses. Eor indeed, until compai-atiyely recently, tbemerefaet oftbe indictment wa5 tantamountto conviction and little other than outright denial was availableto an unfortunate defendanl^.It is hoped tbat tbis article will help to solve some of tbemany problems wbicb may easily be conceived.Wben,forexample,may an American sufficiently shake o^ bis citizenship tbat becan aid America's enemy and avoid a treason cbarge7Is physical oppositiontotbe enforcement of tbelaws of tbe United Statesby its officers treason71f so, weretbestudents attbeUniversityof Mississippi guilty of treason by participating in tbe 1^^^riots7 Can a citizen "adhere" to an enemy witbout "aiding"^WFST, Tl^^ N^^v ^^ANINO 01^ Ti^A^ON (19^4).^Howell, A Complete Collection of StatcTrials and Proceedings for HighTreason and Gther Crimes and Misdemeanors from the Earliest Periodthe Present Time (1816) thereafter cited as How.^t.Tr.^.^CO 53^4^^^A^Ol^bim, and, conversely can hc "aid" tbe enemy witbout "adher^cnce^^^ Is a soldier wbo conducts propaganda lectures for tbeenemy in a POW camp guilty of giving tbem ^^aid^^^ I f so woulditmakeanydiflerence if none of tbe otber prisoners were affected^What is tbe s^tus of tbe alien wbo resides in tbis country^ Istbis status aflected i f be is a citi7:en of an ^^enemy" country^Tbe situations may be ingenuously contrived. Tbe courts mustwrestle fortbe answers.ILATHE HISTORY OF TRiEA^Gl^^^^A^G^^^^^^^G^G^O^^There is no better introduction to tbe law of treason in tbeUnited States than a short review of tbe English law, since tbepresent American law is direcly traceable to a statute publishedby Edward H I in I3oO.^^ During tbe early fourteenth centuryEngland was in a state of flux. Tbese were days of constant civilwar attended by one parliamentary crisis after anotber. Wbenone faction gained power it frequently subjected tbe nobles andlandowners of tbe otber to tbe harassment of trial for treasonbased solely on political or quasi-political considerations. As nolegal definition of treason existed, no one could foretell whataction or word might be interpreted as committing tbe offense.^^An additional troublesome area concemed tbe fact that landsand possessions of anyone convicted of treason were subject toattainder or forfeitures^There was, understandably, increasing agitation tbat tbe oflensebe more rigidly defined. To tbe barons and large landowners tbisargument was quite persuasive in view of the forfeiture provisions.^^ In addition, tbe definition was ^ importance in restraining tbe power of tbe crown to suppress any subject by arbitraryconstruction of tbe law.Statnte of Purveyors, 13^0, 2^ lEdw 3, Stat^, c 2.For the proposition that i t was still dii^cdt to t d l after the statute seeCarpenters Case, 11 Henry V I (1494), digested in Blli^o, A S6I.6cno^ 0^CASES ri^oi^ ru6 SrAr6 Tl^iArs 29 (1st ed. 18^9), where a convicted wiferanrdcrcr was also adjudged ^ traitor in order that hc raight receive thegreater pnnishracnt as an "exaraple." The sarac fate befdl the convictedranrdcrcr of the Duke of Glouchester, Proceedings Against lohn Hall, 1How St:. Tr 1^2(13^^).Clarke, ^^^^^^^^^.^^^^^.^^^14 ItovAr His^. Soc. ^I^a^s.4th(1^31).Perhaps because of continuing pressure Edward 111 further raodihedthe attainder provisions in 13^0 to provide no forfeiture for persons not:attainted in their lifetirac. Statute of ^estrainster, 13^0, 34 Edw. 3, c. 12.ACO ^38^a48^0 MILITARY LAWREVIEWEventually tbcKing yielded to tbe pressures. Tbere resultedtbe famousstatuteofEdward 111 wbicb defined tbe offenseasbeingcommitted:When aman doth compass or imagine the death of our lord the ^ing,or of our Lady his Queen, orof their ddest son andheir; or if a mandoth violate the king's companion, or the king's eldest daughter unmarried, or the wife ^of^ the ling's eldest son and heir; or if a mando levy war against our lord the ^ing in his realm, or be adherent tothe king's enemies in his realm, giving them aid and comfort in therealm or elsewhere, and thereof be provahly attainted of open deed byt'^^ people in their condition."Tbe Statute goes on to definefive Otber acts wbicb mayconstitutetreason (e.g., counterfeiting,assaulting certainof tbeKing'sof^cers),and concludes witb what, for those days, mustbavebeena novel proposition, tbat no otber act would constitute treasonunless made soby act of King and Par^iament,^^ Shorn of tbelanguage concerning tbe monarcb and those portions intendedto purify tbe succession, tbe statute can befairly said to state tbeAmericandefinitiontoday.Tbat Edward I I I delined tbe offense was laudable. Yet manyoftbepre-statutory problemsremained.One reasonfor tbis wastbat tbe courts possessed tbe power of interpreting tbe statuteand could thus put wbatever meaning tbey cbose on sucb vaguephrases as "compass or imagine" and "giving tbem aid or eomfort.^^^^ln 1(^^^,forexample, members ofariotous group engagedinpullingdown"bawdy bouses" wbo failedto obey aConstable'sordertodesistwereconvictedof treason, tbe court holding tbattbis constituted"levying war"againsttbel^ing,^^ An additionalproblemwas tbe personality of tbe monarcb.Undertbe"strong"monarcbstbeoffensetendedtobavemucb wider definition. During tbe reignof Henry VIII,tbe crime is considered to bavebadits widest interpretation. As a matter of fact, Henry VIII extended treason to cover sucb situationsas wishing barm to tbeKingor cailingbim atyrant." However, areading of tbe casesin^bedays of Elizabeth Iwould tempt acontrary conclusion as^^Statute of Purveyors, 1350,^^Edw 3,Stat 5,c ^^^.^^^^^^For an extreme position see the Trial of Algernon Sidney, 9 How. ^t.Tr. 818 (1683). Sidney was convicted solely on evidence of possession ofunpublished manuscripts. It is dif^cult to see how this "compassed thedeath"ofthe^ing^^Trialof Peter Messenger,6How^^.Tr 879 (1668)^^For a good discussion of treason during the rdgn of Henry VH1, seeThornily, 7^^^ 7^^^^.^^^^ ^^^^.^^^^^B^^ ^ ^^^^^ V^.^^, 11 l^o^^r HiST. S^.Ti^^^s. 3d ^7(1917)4^AI^O ^^^^^TREASONto treason's golden age. It is reported tbat after tbe Noi-tbernRebellion of l^^^,Eli^abetbbadsome 1,^0(^ peasants executedastraitors, many on mere suspicion, and witbout tbe benetil of atrial.^^Thus, notwithstanding tbe apparent clarity of ^be Statute ofEdward I I I , tbe law of treason continued to be drawn by awavering band.Justice was dependent upon tbe wbimof tbe Kingor tbe policy of thejudge. Tbe rights of an accused seemed tobave returnedto tbe early days of anarchy.Itwas not until 1^^^tbat tbe substantiye law was backed upbyproceduralguarantees.Tbis was tbe date of tbe enactment of tbe so-called "TreasonTrials Act" wbicb was toplay an important part intbe gi^owtbof tbe American law,^^ Considering tbebarsb justicemeted outby tbeTudorcourts, tbis statute isremarkable in expanding tberights of an accused. First, it provided tbat tbe accused wasentitled to a copy of tbe indictment fiye days prior to trial(although not tb^ names of tbe witne^^es),^^ Secondly,be wasentitledtoberepresentedbycoiinsel.^ Commoners weregranteda jury trial consistingof I ^ freeholders wbo were required tovote^nanimously in order toconvict,^^ In addition, a statute oflimitations was established as three years,^^ But finally, andmost important, it spelled out anotber rule wbicb bas come tobe regarded as fundamental. In tbe absence of a confession aconviction could only be bad by tbe testimony of at least twowitnesses to tbe overt act of treason.And it was carefullypostulated tbat if two or more treasons were charged in tbeindictment itwasnecessary tbat tberebetwo witnesses to eacbseparate act,^^In concluding that the English law bas carried over almostverbatimtotbe American itmaybewelltotouebtangentiallyontbeonepbase wbicb, fortunately,basnot. Thatwas tbe so-called"usual sentence" wbicb was meted out to tbe convicted traitor.^^Bl^^n,^^.^^^.^^^^^note l^at^l9^^^StatuteofWestminister,1695,7^8William3,c 3^^7^^^Prior tothis actcounsel wasforbidden. Theaccused could merd^representhimself andthis was largdyat the mercy of the attorney forthe crown.For a notorious example see the prosecution by Edward Coke in the Trialof S i r W a l t e r l ^ a l c i g h , ^ H o w ^ t . T r 1 (1603)-^^Alsotoacquit.Probable motivated by the case of thetrial of Colond Algernon Sidney,9 How. ^t. Tr. 818 (1^^^), who complained that the evidence against himmay have been 20 to 30 years old. He was executed.^^StatuteofWcstministcr,i7^^2,7^8William3,c 3^^7^^^Aco^^^^a30 MILITARY LAW REVIEWAn illustration of the hideous barbarism can be vividly demonstrated by the sentence given Thomas Howard, Duke of Norfolk,in 1571:Wherefore thou shalt be had from hence to the Tower of London, fromthence thou shalt be drawn through the midst of the streets of Londonto Tyburn, the place of execution; there thou shalt be hanged, and beingalive thou shalt be cut down quick, thy bowels shall be taken forth ofthy body, and burnt before thy face, thy head shall be smitten off,thy body shall be divided into four parts or quarters; thy head andthy quarters to be set up where it shall please the queen's majesty toappe?.r; and the Lord shall have mercy upon thou."For commoners the sentence often included tbe removal of privyparts prior to disemboweling.-^ The Duke was lucky. As witbmost nobles, bis sentence was commuted to simple beheading.Others were not so fortunate. It is surprising tbat this sentencecontinued to be given in tbe Nineteenth Century,^^ and is reported to have been pronounced (although not carried out) aslate as 1867.By tbis time tbe minimum penalty in tbe UnitedStates was five years imprisonment and a $10,000 fme.It does not appear that any consideration was ever given toadopting the "usual sentence" in the United States.B.THE CONSTJTVTIONALVIEW OF TREASONPrior to the Revolution tbere existed in the colonies a varietyof statutes, decrees, and royal grants which recognized tbe existence of tbe crime of treason.Reported law prior to the formationof the United States is rare. The only available extensive recordof trial is the case of Colonel Nicholas Bayard who was tried intbe province of New York for bigb treason in 1702.^^ Bayardwas tried under a New York statute which provided that it wastreason to disturb "by force of arms, or other ways, . . . thepeace, good, and quiet of this tbeir majesties' government, as it isnow established . . . ." 33 Bayard's offense appears to bave beentbat of circulating a petition deemed critical of the provincialgovernment. Notwithstanding an opinion from tbe attorney genTrial of Thomas Howard, Duke of Norfolk, 1 How. St. Tr. 957, 1031(1571)."See, e.g., Trial of William Parry, 1 How. St. Tr. 1095, 1111 (1584).See, e.g., Trial of E. M. Despard, 28 How. St. Tr. 346, 527 (1803).WEYL, TREASON 7 (1950)." For a collection of the various Colonial laws see, Hurst, Treason in theUnited States, 58 HARV. L . REV. 226 (1944).Trial of Colonel Nicholas Bayard, 14 How. St, Tr. 471 (1702)." Id. at 473.48AGO 536JBTREASONeral tbattbis didnot amount totreason, Bayard wastried, convicted and given tbe "usual sentence."Fortunately, tbere was acbangeof Governorsandtbeconviction was reversed. Tbe pointto be drawn from tbe case is tbat, notwithstanding tbe fact tbattbe trial was predicated on aNew York lawbearing no signilicance totbe Statute of Edward 111, thelegal argumentsintbecase all revolved on tbat English statute.While tbe languagemaybave been changed to ^t tbe immediate needs of tbe emergingcolonies, tbe image of treason continued in its Englisb form.During tbe Revolutionary War, treason underwent a change.Tbe emerging states began to enact laws making it treason toadhere to George I H o r b i s f o r c e s Tbese varied in languagebut all followed tbe Statute of Edward lll^eitber by similarlanguage or byexpressreference.^^Wbentbe framersmetto establish aConstitutionadetinitionof treason was indeed important intbeir minds. But tbere mustbave been much soul searching. In tbe first place, tbe framersbad just finished committing treason themselves,atleast sofaras tbe English were concerned. On tbe otber band, tbey badvividrecollections as to tbe danger.of internaltreason. Tbe plotof Benedict Arnold and tbe activities of tbe loyalist Tories badalmost wrecked tbe fledging nationtbey were striving to promote.How sbould treason be delined—by tbe Constitution itself ortbe Congress7TbePinckneyReport,^^ provided for it to be doneby Congress,So, apparently, did tbe New Jersey plan.^^ Butthereafter,tbeframers bad secondtbougbts,ltmaybe surmisedtbat tbey, like tbe barons of 1^50^ felt tbe offense of treasonneeded a rigid definition, free from the whims of a subsequentlegislativebody. Tbe Committee on Detailrejectedbotbproposedversions andsubstituted its own:Treason against the United States shallconsist only inlevying waragainst the United States, or any of them; and in adhering to theenemies of the United States, or any of them. The Legislature of theUnited States shall have the power todeclarethe punishment of treason.^^7^^Hurst,^^^^^-^note31,at^^^,^^^-^^.Charles CPinckney,delegate from South Carolina.F'Ai^i^ANn, l^rcoi^n^ or mr F^i^^R^i. Co:^vri^rio^ of 1787, at(1937).^^^F^i^i^A^i^,^^.^^^..^^^^^^ note37,at 614.^0023^^84^^0 MILITARY LAWREVIEWNo person shall be convicted of treason, unless on the testimony o f t w owitnesses. No attainder of treason shall work corruption of blood norforfeiture, except duringthe life of the person attainted.'"TbeLegislaturewas to retain tbepower to fix tbe punishmentbut not to detinetbe crime. Understandably tbe debates on tbesubjectproved lively,^^ JamesMadison opened tbeissue by contending tbat tbe proposed detinition did not go as far as tbeStatute of Edward I I I andtbatmorelatitudeougbttobelefttotbestates.Madison'stbinkingontbelatterwasdoubtlessly influencedbytbeVirginiaexperienceofBacon's rebellion wbicb wasdirectly solely against tbe local government. Tbe thrust of biscontention involved aproposal toinserttbepbrase "giving tbemaid and comfort." Interestingly enougbtbe delegates themselvessplit on tbe effect of sucb insertion. Some tbougbt tbe wordswould extend tbe definition of treason; some, witb whom tbeautborconcurs,foundtbemrestrictive;some were satisfied tbattbey weremere words of explanation. Intbe end,tbemotion toinsert tbe words c a r r i e d . A sbarpdisputenext developed astowbetber tbe states would still retain tbe right to enact laws fortreason against tbe state. Madison wanted tbem to retain tbispower. By a ^ to ^ vote, tbe delegates voted to limit tbe constitutional provision to treason "against tbe United States."^^At Dr. Frankin's urging tbe language requiring two witnessesto tbe same overt act, one of tbe guarantees of tbe TreasonTrials Act, was included by an ^ to 3 majority.^^ Final debatecentered about wbetber to permit confession in opencourt aloneto be sufficient for conviction. Tbe delegates agreed tbat sucbwouldsuffice, although some consideredtbelanguagesuperfluous.It was inserted.In conclusion, tben, tbe delegates bad hammered out whatwould tbereafter constitute treason against tbe United States.Tbe end product, wbicb was included in tbe new constitution,provided:Treason against the United States, shall consist only in levying waragainst them or in adhering to their enemies, giving them Aid andComfort. No person shall be convicted of Treason unless on the Testi^^^2:id.at 182^ ^ S e e ^ a t 345-^50:^Ar^isON. TuE DEBATES IN m^pEOERALCoN^^N^^iON01^ 1787 WUICHri^A^EI^ THE CONSTITUTIONOr THE UNIT^OSTAT^S O^A^ERiCA,430-34 (Int'l ed,Hunte Scott ed 1920)^^2FB^i^^Ni^,op.c^^^.supranote37,at^4o-^^."Id at 349^^7^. at 34850AOOo^^^^TREASONmony of two Witnesses to the same overt Act, or on Confession in openCourt."A reading of the provision discloses a final sentence as to whichno discussion is found in tbe available records.The Congress shall have the Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, orForfeiture except during the Life of the Person attainted."One problem alone remained for discussion — sbould the Presidenthave tbe power to pardon convicted traitors. Virginia supportedan exception to tbe executive pardoning power of tbe Presidentis cases of treason. Reasoned Mr. Randolph: "The President himself may be guilty." ^"^ But tbe counter-argument ran that pardonis a necessary power and tbat should tbe President himself commit tbe offense be could always be impeached.^^ On the vote onlyVirginia and Georgia supported tbe motion.**C.THEDE VEL OPMENTOFTHEFEDERALLAWHaving been given the authority Congress proceeded quickly toimplement it. The Act of April 30, 1790, after carefully recitingtbe substantive guidelines specified by tbe Constitution, set tbepunishment for treason as deatb.'*^ In establishing proceduralsafeguards, Congress included its up-to-date version of tbe Treason Trials Act and specifically permitted an accused qualifiedcounsel and the authority to subpoena defense witnesses.** It alsorequired that the accused be furnished a copy of the indictmentand the names and addresses of prospective jurors and witnessesat least three days prior to t r i a l . T h e act entitled tbe defendantto challenge up to 35 jurors peremptorily, and, concerned abouta failure to plead, provided tbat if tbe accused either stood mute,or refused to plead, tbe court would proceed to try the case ason aplea of "Not Guilty." "It was under this statute that the courts had their first tasteof "American Plan" treason. During the administration of Wash*• U.S. CONST, art. I l l $, 3." It was apparently lifted from an earlier draft and inserted by the Committee of Style. See 2 FARR.^ND, op. cit, supra note 37, at 601." M. at 626.The counterargument was made by Mr. Wilson of Pa., who had recentlyrepresented four defendants tried for treason in Pa. courts." 2 FARRAND, op. cit, supra note 37, at 627." Act of April 30, 1790, 1 Stat. 112." 1 Stat. 112, at 118." 76;W." 1 Stat. 112, at 119.AGO 5364Bg'J10•'^0 MILITARY LAWREVIEWington and Adams the new treason law was applied twice. Oneinstance arose out of the "Whiskey Rebellion" of ^7^4^ thesecond out of "Erics'Rebellion"in 179^.Both involvedajudicialinterpretation ofwhat constituted "levying war." Shortly thereafter came themacbinations of Aaron Burr and the subsequenttrials of the ex-Vice President and others for treason. Burr'scase involved the technical legal problems involved in provingthe "overt act."The states proceeded to enact their own laws of treason asthey werepermitted todounder the Constitution.But the applications of such statutes has been minimal. Only two cases ofcompleted prosecutions by a state have been uncovered: oneinvolvingThomasDorrbyRhodelsland,andone involving JohnBrown by Virginia.^^Theformer was sentenced to prisonfor life,the latter was executed. John Brown and five of his band ofraiders bold the distinction ofbeing the only men executed fortreason by either state or federal authorities in tbe UnitedStates.^^As the nation grew the number of prosecutions for treasoncontinued tobe few. Trueeach war brought its share of recalcitrants. The War of l^l^had its Federalists and tbe MexicanWar its W h i g s , B u t military oppositionto the Government byits citizens did notoccur again until 1^57.This was thefull scaledisobedience by theMormonsinUtahtbateventuallyled to military opposition to the Army units sent to restore order. Withuncharacteristicfury,President Buchanan issuedaproclamationto the Mormons:Fdlow citizens of Utah^ this is rebellion against the government towhichyouoweallegiance H i s levying war against theUnited States,and involvesyou in the guilt of treason. Persistence in it will bring youto condign punishment, to ruin, and to shameB^The Mormons desisted, but the nation was on the verge ofitsgreatest crisis,theresult of which was to temper thepunishmentfortreasonand to create tbesimilar,but less odious,offenseof engaging or assisting in a rebellion. Were the Confederatestraitors^ The South contended that secession was a right andthatthe secessionists werenomore traitors than the embattledHurst,.^^^^^^notc31,at 807.^^WE^r,^^^^t,.^^^^^^notc30,at 238,260^^7^.atl63^86,201^1L^^Froclama^ion of April 6, 1858, I I Stat.^^^^^^notc 30, 212^37.(App) 7^^. See also ^^^^^^^C053^4a5211TREASONpatriots atBunker Hill.TbeNorthheld the view that they wereinsurgentsand rebels, and thus could only be consideredtraitors.The courts resolved the problem in favor of the United Statesearly inthe war. Said IheSupreme Court,"They ^Confederatesj. . . are none tbe less enemies because they are traitors.^^^^ ADistrict Judge elaborated:This is a usurpation of the authority of the federal government. It ishigh treason by levying war. , . . The fact that any or all engaged inthe commission of these outrageous acts under the pretended authorityof the legislature, or a convention of the p^opl^ , . , does not changeor affect the criminal character of the act. Neither South Carolina norany other state can authorise or legally protect citizens . , , i n ^^-agingwar against theirgovernment,any morethantheQueenof Great Britainor the emperor of France.'"But holding thatthe Confederates were traitors,created additionalproblems.The mandatory sentence on convictionwasdeathunder the 17^0 statute. Eor the occasional treason this wasdeemed appropriate.But now,according to the courts,there werehalf amillion traitors under arms andmany more giving themaid and assistance.Itwas easyto foreseeabloodbathofenormousproportions if the law was applied. Congress foresaw that theCivil War made themandatoi^^ death penalty obsolete. Accordingly, in l^^^,the lawwas amended toprovide that henceforthtbe convicted traitor "shall suffer death , . .or,atthediscretionof thecourt,he2hallbe imprisoned for not less than five yearsandfinednotlesstbantentbousanddollars."^^ At tbe same timeCongress also established tbe offense of engaging or assistingin rebellion, and authorized the seizure and sale of enemyproperty.^^ Eor engaging in or aiding rebellion the maximumpunishment was establishedattenyears imprisonmentor afineof ten thousand dollars, or botb,^^Theeffectof thislegislation was threefold, First, itpreservedthe Act of 17^0prescribing the penalty of death in force fortbe punishment of offenses committed prior to 17 July 1^^^.Secondly, it punished treason committed after that date withdeath or fine and imprisonment unless the treason consisted of^^Pri^e Cases,67US (2Black) 63^,674 (186^).Charge to Grand Jury, 30 Fed Cas 1032, 1033 (No 18270) (C.CS.I^,N y I86I). Sec also United States v Greathouse, 26 Fed Cas 18 (NoI^2^4) ( C C N D Cal 1863); L^nitcd Statesv Greiner, 26 Fed Cas 36(No 1^262) (E D Pa I86I).^^Actof Jul^I7,1862,12Stat^89,^^^12Stat^89,at^90-^9I,^^12 Stat 589, at ^91,^0023^4^1230 MILITARY LAWREVIEWengaging or assisting in rebellion. Inthelattercaseitabandonedthe deathpenalt:y entirely. Theoffenseof engaging in rebellion,designed exclusively to cover the Civil War, remains in forcetoday.^^Tbe transitionof tbe treason actof 1790, withthe graft of the13^^ statute,intothe current law oftreason isaproblem of onlyminor semantics. I t is sufficient for comparative purposes thatthecurrent code provisionbe quoted without further comment:Whoever, owing allegiance to the United States, levies war against themor adheres to their enemies, giving them aid and comfort within theUnited States or elsewhere, is guilty of treason and shall suffer death,or shall be imprisoned not less than tive years and tincd not less than^10,000; and shall be incapable ofholding any oflice under the UnitedStates"^IILATWOTYPESOETREASONT^^^y^^^V^^^^l^^^^Gll^^^While the vast majority of the early English treason trialswere concerned with the offense of compassing the King'sdeath,somefew were addressed to the problem of treason by levyingwar. Where the former, because of the wide construction towhich it was subject, gave the courts little trouble, the latterforced tbe development of at least rudimentary legal conceptswhich could be applied with some consistency. The constructionof compassing theKing's demisestill played a part,but an increasingly minor one. Thus while conspiring to levy, withoutmore,was held not to constitute treason by levying war, itwasstill held to be compassing tbe King'sd^atb.^^Participating in a rebellion aimed at tbe overthrow of thegovernment or enlisting in a foreign army intending the sameresult seems clearly violative of this offense. Less clear is thearea of riot or disorderly conduct not amounting to full scaleinsurgency. The case involving the tearing down of "bawdybouses" bas already been citedfor its unusual interpretation of"levying war,"^^ The recordoftrialdisclosesthatamob of some500,semi-organized and carryingindiscriminate weapons,not onlydismantledthe offending houses, but beattheconstables sentto^ ^ S e e l 8 U S C ^ 2383 (1958)^^^18USC^ 2381 (1958)^^TrialsofTwentyNinePcgicides,5HowS^. ^.947,984 (1660)SccTrial of Peter Messcnger,6HowS^. Tr 879 (1668).ACO 23^481^TREASDNdisperse tbem and shouted"Down with the redcoats^" TheChiefJustice sawno humor when be charged thejury:Ry levying of war is not only meant, whcnabody is gathered together,as an army is, but if a company of people will go about any publicreformation, this is High Treason, if it be to pull down inclosures, forthey take upon them the regal authority; the way is worse than thethlng.^^Sir MatthewHale dissented. He viewed the situation as nothingmore serious than disorderly conduct.^^ But the English courtsquickly backedoff fromtbisbroad construction. Thereafter, theprosecutions for treason by levying war, arisingout of domesticdisturbances, were limited to such situations as where mobs actedwith force to prevent theexecutionof alaw,^^ or rioted to forcethe legislature to repealanunpopularstatute.^^TheUnited States faced asimilar situation in its history. In1794,the^W^bi^^key Rebellion" flared inthe western countiesofPennsylvania in resistance to at^onspirits,^^ Federal officerswere first threatened, the assaulted. In July of I794 amob attacked the home of the chiefexcise officer whichwasdefended bya number of men including Irregulars from Fort Pitt. Aftera day long siege the garrison surrendered and tbe bouse wasburned. Subsequently, the mob, in a show of force, marchedthrough Pittsburgh,although nofurther violence developed withthe garrison.Tbe arrivalof troops from Philadelphia put anendtotheuprising. Anumber of theparticipants were apprehendedand charged with treason. Only two persons, however, wereactually brought totrial.^^ Inthe ^^tc^^^^casethe defensecontended that the attackon the exciseofficer'shomewasan attackon him as an individualand not in his capacity as an officer of theUnited States,and, further thatthere was no attempt toresistthe law on a nationwide scale. The argument was simply thatthis was a riot, but not treason. Justice Paterson charged thejury:^^7^at 884.^^7^. at911,Inatimc whenacquittals intreasoncases were notablyfew, six of the 14 defendants were acquitted outright and four convictionswerelater reversed.^^Sec Trial ofSirJohnFreind, 13 How St^.Tr 1 (1696).See Trial of George Gordon, 21 How St:.Tr 485(1781).^^^Forafullaccountof the incident see t^nited Statesv Insurgents, 27Fed Cas 499 (No 15443) (C C D Pa 1795).^^SeeUnitcdStatesv Vigol,28Fed Cas 376 (No 16621) (CCD Pa1795); United Statesv Mitchell, 26 Fed Cas 1277 (No 15788) (CCDPa 1795),ACO ^3^481430 MILITARY LAWREVIEWIf ^the object of theinsurrection^ was tosupprcsstheexciseoflices, andtoprevent theexccution of an act of congress,b^ force andintimidation,the offense, in legal estimation, is high treason; it is a usurpation ofthe authority of government; it is high treason b^ levying of war.^-Both defendants were promptly convicted and sentenced todeath.Bothwere later pardoned.7^If the actions of the "whiskey Rebels" clearly evidence adetermined effort to oppose an act of Congress, those of the"Northhampton Insurgents" do not. In 1799, John Fries led aparty of somewhat over lOOmen tofree ^0 farmersbeingheldby United States marshals for conspiracy to violate tbe LandTax Act. Themobarrived at atavern wheretheprisoners werebeing held, threatened the marshals, and secured their release.The group then promptly disbanded. No one was killed orwounded;no one wasfiredon,JohnFries was tried fortreason.^^Charged insubstantially thesamelanguage used in the^^^^^^^^^case,twojuriesreturned verdictsof g u i l t y . E v e n i n a countrywhere the specter of revolution wasstillarealfear,it isdifficulttoconceivehow Fries could havebeen convictedof levying war.Measured against the facts, Fries' "insurrection" appears fragmentary,momentary,and of little significance.If this was treasonthen almost any riot or disorder involving opposition to a lawof theUnited States canbe construed as treason. Certainly the19^^ Oxford, Mississippi, riots constituted activity far moreserious than anything undertaken by Fries and his men. Weylsuggeststhat the trial was purely political and that Fries wasavictimofaEederalistplot.^^In any event reasonprevailedandFries was eventually pardoned.Broadened by the.^^^^^^ construction, treason by levying warwas dueforanevenwider interpretation.By 1^0^,theschemes ofex-Vice President AaronBurrbegantocometolightandin 1^07Burr himself was brought to trial for treason by levying war.The alleged overt acts had occurred at a place called Blennerbasset^slslandinwestern Virginia. Yet boththe prosecutionanddefense agreed that Burr was nowhere near the island at thetime. Chief Justice Marshall, concluding that Burr's presence at^-United Statesv. Mitchcll,.^^^^^^notc71,at 1281.^^^WEyi^,^^.^^^,.^^^^^^ncte^^.at85Case of Fries, 9Fed,Cas 826 (No 5126) (CCD Pa I7^^^;CaseofFries,9Fed Cas 924 (No 5127)(CCDPa 1800)^^7^^^.^^^WE^E,^^^^^^,^^^^^^note^^. at 107^09.^^7^ at 109^C0^324B15TREASONthat place was unnecessary, quoted with approval from theBollman case:''*It is not the intention of the court to say that no individual can beguilty of [treason] who has not appeared in arms against his country.On the contrary, if war be actually levied, that is, if a body of menbe actually assembled for the purpose of effecting by force a treasonableobject, all those who perform any part, however minute, or howeverremote from the scene of action, and who are actually leagued in thegeneral conspiracy, are to be considered as traitors."Burr was eventually acquitted. With his trial, the heyday oftreason by levying war passed. Stretched to cover Fries andBurr the wide interpretation as to what constituted 'levyingwar" began to contract. Even as Burr sat in a Richmond courtroom, the Circuit Court in Vermont was drawing a sharp distinction between resistance to the law for a private purpose andresistance of a general character.*^ Thus the recovery by force ofprivate property seized by a revenue agent, though accomplishedby a force of about 60 men and accompanied by desultory firebetween the mob and militiamen was held to be of a privatecharacter and not to constitute levying war.®^ The court was alsoconcerned about the de minimis aspects of this affair. "In whatcan we discover the treasonable mind?" asked Judge Livingston."Can it be collected from the employment of ten or twelvemuskets?" ^ Mentioning the Fries case the court proceeded toemasculate its holding.Tbe vitality of the Mitchell case continued until the 1851 decision in United States v. Hamvay.^^ The facts of that case leaveit clear that Hanway aided one of several armed bands advocatingforceable resistance to the fugitive slave law. In the immediateviolence out of which the case arose a slaveowner was killed, hisson wounded, and police officers attacked and beaten. Chargingthe jury, Justice Grier professed to see a change in the legaldefinition of "levying war." The "better opinion there at present"he charged, "seems to be that the term levying war should beconfined to insurrection and rebellions for the purpose of over••Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).United States v. Burr, 25 Fed. Cas. 55, 161 (No. 14693) (CCD. Va.1807) .See United States v. Hoxie, 26 Fed. Cas. 397 (No. 15407) (CCD. Vt.1808) ,Ibid.Id. at 399-400."'See United States v. Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D.Pa. 1851).AGO 5364B571630 SOLITARY LAWREVIEWthrowing the ^Gjovemment by force and arms. Many of thecases of constructive treason quoted [by the English writersl,would perhaps now betreated merely as aggravatedfelonies."^^With this encouragement the jtnw promptly acquitted the accused.Outright rebellion thus continued to come within the areadefined by tbe term "levying war." The Civil War appeared tosometobe tbe opportunityto utilizethis term toprosecute theConferates for treason. As amatter of record, however, only afew indictments arose out of that war,and these producedlenientresults. Tbe sentences of RidgelyGreatbouse and his compatriots,for example, convicted of levying war by attempting to outfitaprivateer for Confederateservice were terminated upon theirtaking theoathof allegianceto theUnited States,^^ Theindictments against such contrasting individuals as Charles Greiner,^^amember of a Georgiaartillery company which participated intheseizureofFortPulaski,andJeffersonDavis,^^ President oftheConfederate States, were never brought to trial.Since that time, a number of incidents have occurred whichmight have been considered a basis for charges of treason bylevying war The activity of the Klan during Reconstruction,theHaymarketRiotsof 1886,andthemarcbof theBonus Armyin 1932 were allseriousenoughtorequiretbedispatchof troopsto maintain law and order. But the definition which limits treasonbylevying war to actualrebellion against the Government seemstohaveprevailed. It issignificantthatsincethe^^^^^ case notone attempt has been made to revive the offense.B^^^B1^^^^^^^^^^^V(^7^(^7^^^^^^^)^(^71B^V(^^^^^^^y^^.^C^^^^^^Unlike the offense of treason by levying war which passedfrom the scene almost one-hundred years ago, the offense oftreason by adhering to the enemy bas achieved a considerablylonger and more usefiil existence. This phase of treason encompasses twoelements: adhering to the enemy and givingbim aidand comfort With these elements the problem of intent is inexorably intertwined. A citizen may intellecttially, emotionally^^7^. at 127United Statesv. Greathouse, 26 Fed Cas 18 (No 15524) (CCNDCal 1863)^^SceUnited Statesv. Greiner, 26Fed Cas 36 (No 15262) (DCEDPa 1861)^^SeeCaseofDavis,^Fed Cas^^(No^^^Ia^ (CCD Va 18^7-187^).ACO ^3^^^t^TREASONand spiritually sympathize with the enemy. He may harbor disloyal thoughts,But solonga^he failstoengagein some sort ofconduct designs to give the enemy aid and comfort, thecrimeof treason isnotcomplete,^* Conversely a citizen may doan actwhich givesthe enemy aid andcomfort,but if there is no adherence totbeenemy'scause there isnotreason,*^By doing the acthemay appear outwardlyatraitor but he is not legallyatraitor,^*Nor doesit appear necessary thatthe enemy wants orneedstheproffered assistance. The merefact that i t i s offeredor renderedwith the requisite intent will make the crime complete.As inother aspects of thelaw,we must go back toEngland forastarting point. Interwoventhroughout tbeEnglisb cases istheconceptionthat adhering totheenemy necessarily compassedthedeath of the king. For that reason, indictments for aiding theenemy,inand of itself,are scarce. But at least asearly as 1691it was recognized as a separate otfense,^^ At the trial of SirRichard Grabme for attempting to smuggle out of England anumber of documents concerning thestatus of military defenses,Lord Chief JusticeHolt,after commentingontheindictment forcompassing the King'sdeath,observed:"There is another treasonin the indictment mentioned and that is for adhering to, andabetting tbe king's enemies, there being open war declared between the king and queenand the French king,^^Defining the rationale of the offensethe Solicitor General ofEngland argued in 1781:Howcanany state exist,how contendwith anenemy, if it is to sufferwithin its ownbosommen employedto give intelligence of all its operations tothosewithwhomitis at war7 Gne man,so employed, may oftenl^irri^5 ^o r^uch more mischief to tbe country of whose Operations hegives intelligence than an army of 50,000 men."The English courts also established the proposition that theoffense was complete oncethe overt act occurred and itwas nodefense that the enemy was not actually aided.The convictionof Viscount Preston was sustained notwithstanding that his attempt to smuggle defenseplans out of England was terminated^^Craraerv UnitedStates, 325 U.S. 1 (1944);United States v.Werner,247 Fed 708 (ED Pa,l^t8),o^'^251U.S.466 (1919)See ^awakitavUnited States,343 US 717( 1952)"United States v Werner, 247 Fed 708 (ED Pa 1^18^, ^^^^ 251U S 466 (1919)^^SeeTrialof SirPichardGrahme, 12How St.Tr 645 (1691)^-7^ at 730,^ ^ T r i a l o f F H D e L a Motte, 21 How Sl:.Tr 687,798 (1781)^^SeeTrialof SirPichardGrahmc,12How St.Tr 645 (1691)AGO ^3^^^1830 MILITARY LAWREVIEWby bis apprehension.Nor did it avail those accused of treasonby attempting to mail secrets abroad in time of war to contendthat the letters were intercepted before they left the coimtry,^^The celebrated trial of CaptainThomas Vaughan resultedintheconviction for aiding the enemy ofaseamanwhowent^^cruising^^underaFrenchcommissionwhere there wasno evidence thathemade any hostile attempt upon an Englisbvess^l.^^Allof these cases have beencitedbyAmericancourts.Perhapstheleadingcase intheUnited States involves the efforts of MaxHaupt to acquire a job for his son, a Nazi secret agent, at afactory engaged in producing lenses for the top-secret Nordenbombsight. The efforts consisted solely of visiting the homes ofaplant superintendent and a shop foreman and inquiring intothe means of securing such employment. There was no evidencethat a job application was ever submitted or that any furtherstep wastaken inthatdirection,^^ Affirming the conviction, MrJustice Jackson commented succinctly:His acts aided an enemy of the United States toward accomplishing hismission of sabotage. The mission was frustrated but the defendant didhis best to make it succeed. [Thatj His overt acts were proved in com^pliance with the hard test of the Constitution, arc hardly denied andthe proof leaves no reasonable doubt of the guilt.Whilenotnecessary totheresult,thisprinciple was expresslyadhered to in the case of radiopropagandist,Douglas Chandler.^^^The evidence established that Chandlerhadpreparedanumber ofbroadcasts for theuse of the German Radio Broadcasting Company.Chandler contended there was no evidence anyofthe recordings were ever used,orif used,that auyonciutbcUnitcd Statesever heard them. Dismissing this argument the court concluded:It does not even matter whether the particular recordings , , , wereactually broadcast. Chandlcr^s service was complete with the making ofthe recordings, which became available to the enemy to use as it sawfit. , . .His act of making the recording for the enemy is like givingto anencm^agent apaper containing military information, which would^^7^^^^^Trialof DavidTyrie,21How St. Tr 815 (1782);Trialof FlorenceHcnsey,19HowSt.Tr 1342 (1758),^^Trialof CaptainThomas Vaughan, 13 How S^.^. 485 (1696),^^Fo^ a detailed discussion of the evidence in this regard, see UnitedStatesv Haupt, 152F.^d771 (7thCir 1945)^^^^o^, 330 U,S,631 (1947),^^Hauptv United States,330 US 634 644 (1947),^^^^^^^Chandler v United States, 171 F.^d 921 (Ist Cir,),336 US 918 (1948).AC0 23^^a^(^1^TREASONbe a completed act of aid and comfort, though the enemy agent laterlostthepaper and thus nevcrputthe information to any effective ^.^^^B^^Who isthe "enemy" forthepurpose of receiving this aid andadherence7IntheEnglishcases,oriented as usualwith monarchical concepts, it was the foreign sovereign himself The earlyAmerican cases immediately following the Revolution departedfrom this concept. One early Pennsylvania case charged thedefendant with intending ". . . t o raise again and restore theGovernment and tyranny of theKing of Great Britain. .However, reference to theking, as such,played an increasinglylesser role and prosecutions were based merely on aid to hissoldiers,^^^An opportunity to fally explore the definition of an "enemy"didnot ariseuntilthe Civil War. Theproblem quickly arose asto whether the Confederates were "enemies" for the purposeof the treason law. The problemwas resolved inthe negative byMr. JusticeFieldintheG^^^^^^^^^cas^.^^^Hechargedthejury:Theterra "enemies" as used inthe second clause, [of the Constitutionalprovisions according to its settled meaning, atthe time the constitutionwas adopted, applies onlyto the subjects of a forcignpower in a stateof open hostility with us. It does not embrace rebels in insurrectionagainst their own government. An eneray is always the subject of aforcignpower who owes no allegiance to our government or eountry.^^^The practical result was that all future treason prosecutionsagainst tbe Confederates bad to be charged ^'levying war."^^^It is interesting to note, and practical politics appears to havedictated, that the definition of an "enemy" f o r t b e purpose oftreason andthat forthepurposeof confiscating theproperty ofan "enemy" received diametrically opposite treatment, lu thelatter situation the courts had no problem holding Confederatesoldiers andcitizenstobe enemies andtheir property subjecttoforfeit.^^^^^^7^ at941.^^^Respublicav C a r l i s l e , i U . S . ( I D a l l ) 35 (1778).^^.^ PespublicavMalin,lU8 (1Dall) 33 (1778)^^ccor^. UnitedStatesv.Hodges,26Fed Cas 332 (No 15374) (CCD Md 1815).'"United Statesv Greathousc,26Fed, Cas 18 (No 15254) (CCND.CaL 1863).^^^7^at22.^^^^^^^ c^. Pri^e Cases,67U.S.(2Black) 635 (1862) which seems toaccordthe Confederacy bdligcrcncy status although f o r a different purpose(^.^., violating thcblockade).^^^TheVenice,69U.S.(2Wall) 258 ( 1 8 6 4 ) ^ ^ . Alexander's Cotton,69U.S,(2Wall) 404 (1864),^C0^3^4820^0 MILITARY LAWREVIEWTheoffense of treason by aiding the enemy can onlybe committed during time of w^r,^^^ But it does not necessarily followtbat the war must be attired with allthe customary trimmings,such asa formal declaration. It is trueas amatter of factthatall previous treason prosecutions inthis area have arisen outofincidents which occurred during time of a formally declaredconfiict. Eor this reason, it is perhaps unfortunate that no treasonprosecution followed the Korean confiict by whichthe standardsof that'^war'^ couldbe tested. Some support for thepropositionthat less than a "formal" war will sufficemay be found in anAttorney General's opinion in 1798,during themaritime disputewith France,that the treasonlaw applied toaFrenchcitizenwhowas intheUnited StatesbuyingsuppliesforErenchbases intbeW^cst Indies.^^'^ Again, in 1871, the Attorney General expressedthe opinion that persons apprehended running guns and ammunition to hostile Indians were subjectto militarycourt-martial for"relieving the enemvB'^^^Todayai^r^ctical question may be raisedconcerning the statusof the VietCoiig. Arethey an "enemy" as thatword isused inthe treasonstatute7This question hasrecentlyreceivedcollateralconsideration with thedecisionto issue certain awards for valorin combat in South Vietnam. Fearing that the term "enemy"might be legally in^pplicable.^^^ Congress amended the statutesgoverningthe award ofthe Medal ofHonor, Distinguished ServiceCrass and Silver Star toinclude situations where Americanservicemenwereinconfiict witb an opposing foreignforce OS servingwith a friendly foreign force engaged in an armed conHict,^^^Yet whenit awarded tbe Medal of Honor to Captain RogerDonl^m,the Departmentof the Army had no hesitancy in referring totheVietCongasan"enemy"on fire occasions.W^bile the cited authorities do not fully resolve tbe question,they may be taken to indicate that the civil offense of treasonand its military counterpart of aiding the enemy could well becommitted in anescalated"coldwar"situation.'"United States v. Fricke, 259 Fed 673 (S,D,N,V,19i9),^^^^Sec1^^2.ATT^^G^N,49(I7^8^.^^^^ Sec 14Grs,ATT'YC^^N. 470 (1871).^^^1^^^ U.S.C. CoNC.^Ai^.N^W2 776.S e c l O U S C ^ ^ 3741, 3742, 3746 (Supp,V, 1964),^^^See^en.OrdcrsNo 41,Hq Dept of Array (17Dec 1964),^002324^21TREASONIV THE JURISDICTIONAL ASPECTSOETREASONA (^1^^^^^^^7^^^^^^A^^^^^^^7^^A^A^^7^^^A^^^^No one would suggest that the prosecution of anative or naturalized American citizen for treason committed within thebordersof theUnited States would raiseajurisdictionalproblem.But treason committed overseas is a different matter. The lawpunishes as traitors those who adhere to theenemies of the UnitedStates within thecountryorelsewhere,^^* Where thelaw is appliedto American citizens, it is tbe "or elsewhere" that raises tbeproblem. It isaproblemof recent origin.Eor once we are unableto glean from the State Trials any case dealing with overseastreason,^^^ andhistory bas shownittobebasically an Americanproblem. True, England produced Casement,^^^ but the evidencein the Joyce case strangly points to the fact that even "LordHaw Haw" was an American national,^^^Attheoutset,itmay be well to consider wherethe concept ofoverseas treasonoriginates.Normally the answer wouldbe foundin the Constitution. It has been noted that treason is the onlycrime defined in that document. But a re-reading of Article 3,section 3,fails to disclosethe words "orelsewhere." The convention that framed the Constitutioncertainly consideredthem. Itsmembers were familiar with the statute of Edward III.^^^ Yet thewords do not appear in tbe draft submittedbytheCommittee ofD e t a i l , a n d a proposed substitute which would have includedthem was defeated by an 8to ^ vote,^^^ The words first appearin the statute by wbichCongress implemented the authority giveni t t o declare the punishment fortreason.^^^Itfollows tbat oncobjectiontotheinclosureof thewords^^orelsewhere" in tbis statute is tbat thepowerof Congress is limited^ ^ ^ I 8 U S C ^ 2381 (1958)Unless youconsiderthe IB^^^^T^^^ case involving treasonon the highseas. Case of Captain Thomas Vaughan, 13 How. S^. Tr. 485 (1696).^^^An Irish revolutionary who attempted to carve out an independentIreland with German help during World War 1. Gn his return from Germany he was captured, tried for treason, and executed. Sec Pex. v. Casement, 115LTR ( N S ) 267 (1917)^^^l^e^v Joyce, 173LTP (N.S.)377 ( 1 ^ ^ 5 ) , ^ ^ ' ^ . ^ ^ ^ ^ ^ ^ Joycev.Director of Public Prosecutions, 1 7 4 L T P ( N S ) 206 (1946) Sec alsoW E S T T H E N ^ W M E A N I N O OETREASON (1964).^^^^ F.^RI^..^NI^, RECORr^S OE THE pEOERAI. CONVENTION OE 1787,al: ^42(1937)^^^7^ at 182^^^7^ at ^47-48,^^^ActofApril 30,1790,lStat 112A00^3^^^2230 MILITARY LAW REVIEWto providing the punishment for treason and does not extend todeclaring where the offense may be committed. A second argument is that the words "or elsewhere" qualify only the phrase"giving aid and comfort" and do not apply to the phrase "adheresto." I f this were true and both the adherence and the aid andcomfort to tbe enemy took place outside the United States thestatute would not be violated.Both of these contentions were unsuccessfully asserted in theChandler case.^- With regard to the former the court repliedthat had the framers intended to restrict the crime to the UnitedStates, they could easily have done so.^^^ Furthermore, the restrictive words "within their territories" had been deliberately rejectedby the Committee of the W^hole.^^* The latter contention too wasrejected, the court concluding that sucb theory ". . . violates theplain language of the statute."If this proposition can be considered as firmly settled, whatrecourse is open to the American overseas who chooses to supporthis country's enemy? The Nationality Act of 1940 opened thedoor: voluntary expatriation,pj-ior to that statute wartimeexpatriation was prohibited,^" but this restriction was eliminatedin the new legislation. Among the recognized means by whichnationality could be lost were (a) obtaining naturalization in aforeign state, (b) taking the oath or making a formal declarationof allegiance to a foreign state, or (c) making a formal renunciation of United States citizenship before a diplomatic or consularofficial of the United States in a foreign state.^-^How many Americans took advantage of the Nationality Act totransfer tbeir allegiance to a wartime enemy and thus avoidedpost-ward prosecution for treason is unknown. A Federal Courthas used the phrase "many persons."One writer has gone YOUnited States v. Chandler, 72 F.Supp. 230 (D. Mass. 1947), a f d , 171F,2d 921 (1st Cir. 1948), cert, denied, 336 U.S. 918 (1949)."'171 F.2d at 929."*2 FARRAND, op. cit. supra note 118, at 347-48,United States v. Chandler, 72 F.Supp. 230, 233 (D. Mass. 1947), aff'd,171 F,2d 921 (1st Cir. 1948), cert, denied, 336 U.S,918 (1949); accord, Gillars v. United States, 182 F.2d 962 (D.C. Cir 1950), Best v. United States,184F.2d 131 (1st Cir.), cert, denied, 340 U.S. 939 (1950).Nationality Act of 1940, § 401, 54 Stat. 1137.Act of March 2, 1907, 34 Stat. 1228.Nationality Act of 1940, § 401, 54 Stat. 1137.See D'Aquino v. United States, 192 F,2d 338, 348 (9th Cir.), cert.343 U.S. 935 (1951).64AGO 5364B23TREASONfar as to assert that "several thousand" changed allegiance toJapan a l o n e . A t least three were unsuccessful.On December 8, 1941, approximately simultaneously with thedeclaration of war, Mildred Gillars, better known as "Axis Sally"executed a paper which contained the words " I swear my allegiance to Germany." Tbe paper was then given to her superior.On the basis of this document, which was never produced, sheurged the jury be instructed tbat if they found this to be a sufficient renunciation of citizenship, they must acquit. The courtrefused to give the instruction and the conviction was affirmedon appeal,^^^ A loose interpretation of the statute might havesustained appellant's contention, but the court chose to requirestrict compliance. The court noted there was no evidence that thepaper had been sworn to before anyone or that there was anyconnection between it and any procedure having to do with obtaining Reich citizenship.Nor did it find any substance to appellants' contention that her citizenship bad ceased when her UnitedStates passport, submitted for renewal in 1941, had been retainedby the consular agent. A passport is some evidence of citizenship,it is indeed useful in travel, but, concluded the court, its absencedoes not deprive an American of his citizenship.^^^A second argument advanced in favor of successful expatriationunder the Nationality Act of 1940 was advanced by Iva D'Aquino,the "Tokyo Rose" of the Pacific theater. She noted that under theexpatriation provisions of the act a person was permitted to shedhis allegiance to the United States and by so doing could engagein adherence, aid and comfort to the enemy with impunity.^^* Sheargued that to try ber for treason for acts which the law permittedothers tp do was unreasonable and arbitrary and constituted adenial of due process under the Fifth Amendment.^*^ But thecourt found no sound basis for such contention and concluded itThe Constituwas no more than a mere ". . . play on words."tional argument got no further than the effort to give the statutea broad construction.See Blakcmore, TJecoverj/ of Japanese Nationality as Cause for Ex'patriation in American Law, 43 AM. J. INT'L L. 441, 451 (1949).Gillars V. United States, 182 F.2d 962 (D.CCir. 1950)." ' M at 983." ' M at 981.See D'Aqulno v. United States, 192 F,2d 338, 348 (9th Cir,), cert.(^gMW, 343 U.S. 935 (1951).See lAzW.See at 349.AGO 5364B2430 MILITARY LAWREVIEWOnelast problem areaintbefieldof overseas treasonconcernsthe status of the dual citizen. Such an individual was ToyomaI^awakita.i^^ Born in California of Japanese parents who werecitizens of Japan,be was thus acitizenof the United Statesbybirth,and,byJapaneselaw,acitizen of Japan.In 1939,he visitedJapanonan Americanpassporttoattendcollege. When thewarbroke out he chose to stay in Japan and finish his education.Duringthis period hewas registered by the Japanese police asan alien. Subsequently, he attempted to renouncehis Americancitizenship.Todo tbis he had his name entered onafamily censusregister. He then obtained employment with a metal companywhere he was assigned as translator in connection with the use ofAmerican prisoners of war as laborers.Not contentwithapassiverole he continually humiliated the captives and frequently subjected tbem to brutal treatment. In 1946, be reapplied for hisAmericanpassport and returned totheUnited States. Achancerecognitionbyaformer prisoner caused his arrestand subsequenttrial for treason. ( ^ appeal Kawakita stressed his Japanesenationality. In addition to the entry ofhis name in the familyregister, he argued for the broader propositionthat an individualpossessingdual nationality whoresidesin one of the countries ofwhichheisanational cannot be guilty of treason against theothercountry.i^^ Tbe assertion appears tobe based on the "right" ofadual national tomake an election,in time of war, towhich ofhis sovereigns he will adhere. The court promptly rejected hiscontention. Concerning the contention thatl^awakita,by his acts,hadrenounced his Americancitizenshipthe court answered:That conclusion is hostile to the concept of citizenship as we know it,and it must be rejected. Gne who wants that freedom can get it byrenouncing bis American citizenship. He cannot turn it into a :^airweathcr citizenship, retaining it for possible contingent benefits butmeanwhile playing the part of thetraitor An Americanciti^cn owesallegianceto the United Stateswhercver hc may reside.'"As regards the family register,the court dismissedthis contentionon the theory that the registration wasmerely as assertionof some of the rights Kawakita already possessedby reason ofhis dual nationality.Tbe.^^w^^^^^^ holding is far from decisive. It is aminority^^^Sec^awakitav United States, 96F.Supp. 824 (S,D,Cal 19^0),^^^o^,190F.2d 50^ (9tb Cir.),o.^^^,343US 717(1951)^^^Seel^awakitav United States,343 US 717,732 (1951)^^^7^ at 735.AG0^3^4a22TREASONopinion. Two justices took no part in the decision and threedissented,^^^ The dissent is based on the conclusion thatby his actsKawakita had expatriated himself as well as be could bav^.^^^Blakcmore appears to make evenamore telling point.Hediscussesthe unusual Japaneselaw of "recovery" of nationality and concludes that any person who so "recovers" under Japanese lawhas effectively expatriated himself under the Nationality Act of1^40.1^^ Since "recovery" under Japanese lawmay be accomplishedthrough inclusion in the Family Register Record, Kawakita canthusbesaidtohaveexpatriated himself prior tothe time ofhistreasonous acts.It may be concluded, then, that an American may avoid bisnatural loyalty tobiscountry through anactof voluntary expatriation. But the merefact that such person purportstoverballyor informally renounce his citizenship orpurports topledge bisallegiancetoanyenemy state,withoutcomplyingwithit^ formalrequirements, will notexcuse thecrime of treason. Before allowinga citizento adhereto ourenemies the courts will demand astrict compliance withthe statutes dealing withexpatriationevenf o r a p e r s o n w i t h a d u a l nationality status The "highest of allcrimes"cannotbelightlyevadedB7^^^^^(^A^^^^^^^^^A^7^^^^^A^^If treason by an American citizen must be either black or white,then treason by a resident alien can onlybe described as gray.The allegiance owedby a citizen is fixed and certain; that owedby an alienimperfect and temporary. I f the nationality of thealien is that of an enemy belligerent the problem is increased.The alienmay feel nolovefor the country in which he resides;he is more likely than its native son to wish itill,but ifhecommitsone overt act designed to accomplish its downfall, the nooseloomsjustashigh.The underlying rationale behind punishing the alien fortreasonagainst thebost country isnot new. Itwas firmly established inEngland. Itwasclearlyexpressed inl.781 by Mr. JusticeButler,inpassing the"usual" sentence upononeDeLa Motte,aFrenchman living in England who had attempted to send military secretstoaidhishomeland, asfollows:During your residence in this country, as well a^ duringthe course of^^^Scc:i^at745,^^^Sce:id.at 746.^^^SceBlakemorc,,^^^^^^notc 130,at44^,AGe^324a2630 MILITARY LAWREVIEWyour trial, you have received the protection ofthe laws of the land. As^u^h ^ou owcdaduty to thosclaws,andanallegiancc to theking whoselaws they arc; but you have thought it tit to abuse that protection youhave received."'The adoption of this principle in American law appears clearalthoughtheactualtrialofanalienfortreason is unknown inthiscountry. Ithas already been observed thatthe Attorney Generalin an early opinion,concluded thataErench citizen in this countrywas subject to trialfortreason,^^^Further support for the general principle may be found in7^^^^^^^^^7^,i^^ Tbe question concerned whether ornot an Englishcitizen couldbe the "subject" of the King of Spain, for treatypurposes, where his ship had been seized by an American privateer during the War of 181^. Holding that he could, JusticeStory,referring tothelocation of thatcitizen'sactualresidence,concluded:. . .aperson domiciled in acountry, and enjoying the protection of itssovereign, is deemed a subject of that country. He owes allegiance tothe country, while he resides in it; temporarily indeed, , . .but solixedthat, as to all other nations, he follows the character of that country,in war as well as in peace.""With the outbreakof the Civil W^ar zealous judges,foreseeingarash of impending treason trials, charged their grand juries in^^^Trial of DeLaMottc,21HowSt:,Tr 687,814-815 (1781)See lGi^2. Arr^, GEN 49 (1798) Itcanbearguedthathisholdingis inconsistent with the decision in United States v. Villato, 2 U.S. (DDail.) 370 (1797), a trial for treason of an alleged American sailor whojoined the crew of a French vessel which subsequently captured an American ship. At the trial the accused successfully contended that he was notan American citizen but a Spaniard. Arguing on the merits the U.S.Attorney conceded "that if the prisoner isnot anationali^cd citizen of theUnited States, he must be discharged," United States v, Villato, .^^^^^^ at371. In the subsequent holding both judges concurred that since the accused was found not to be a citizen of the United States hc must "consequently be released from the charge of high treason." United States v.Villato, .^^^^^^ at 373. Given broad interpretation these words can be readto mean that no foreigner can be tried for treason. But as the acts werecommitted onthe high seas it ismorc reasonable to conclude that thcplaceofthe acts must have been considcrcdby counsd and the court, and not assuggesting that a resident alien could not be found guilty. It has neverbeen suggested that a foreigner who aids our enemy overseas can hebrought himself within our treason law. It is significant that no subsequent effort has been made to give this language a wider construction.^^^15US (2Wheat) 227 (1817)^^^7^. at 246. It is unfortunate that Justice Story used the words "domiciled" and "resides" interchangeably since the former implies an intent ^oreraain.AG0^3^4a27TREASONdetail witb the law of tbe ol^ense,^^^ Only one of these specificallyincludedinstructionsconcerningresidentaliensbut it specificallyadhered to the English rule, charging that any suchso)oum^r,enjoying the protection of the United States, owes alocal allegiance, andmay beguilty of treasonby cooperating with rebelsor foreign enemies,Only one case arising out ofthat confiict seems to have considered the problemof treasonby resident aliens,^^^ but that caseis significant in its adherence to the English rtile. The suit involvesanefforttorecover damagesforgoods owned by British citizenswhich were seized in AlabamabyUnited States forces.The courtdiscusses theloyaltyowedbyaresident alien in tbislanguage:The alien, whilst domiciled in the country, owes a local and temporaryallegiance, whichcontinucsduring the periodof hisrcsidcncc. Thisobligationof temporary allegianceby analienresident inafriendly countryis everywhere recognised by publicists and statesmen. , . . [ I j i : is wellknown that,by thcpublic law, an alien or astrangcr bom, for so longa time as hc continues within the dominions of a foreign government,owesobcdicncetothelawsof that government,and maybcpunishcdfortreason or othcrcrimcs as a native born subject might be. , ..^^^Thus, another of the English rules has been assimilated intotbe American law of treason. As witb many others it can at timesbeconsidered harsh. Certainly the G^^^^.^^^case canbe read forthe propositionthat Carlisle could have beenconvictedof treasonasa resident alien. Therationale behind suchprosecution wouldhavebeentbat thealien was enjoying the protection ofthe lawsof theUnited ^tates.Yet Carlisle was deepin Alabama wherethelaws of the United States protected him about as well as they couldhave in Africa.Consider also thecase of thealien whose homelandhasbecomethe"enemy." Doeshis duty tohis country extendtoworkingfor its successin the state whereheresides?If he doessohesubjectshimself toatreasonprosecutionbythat state. Buttbe rule is harsh where tested by the needs of the individual.Tested by the needs of tbe state it becomes necessary in theinterestof national self-protection.Sec, ^.^..Chargc to Grand Jury, ^0 Fed Cas 1032(No 12270) (CCSD N,y^ 1251)^ Charge to Grand Jury, 50Fcd, Cas 105^ (No 12272)(CCSD Ghiol^^l),'"Charge to Grand Jury, ^0 Fed Cas 10^9 (No 12273) (D Mass12^1)-d. Chargcto Grand Jury, 30 Fed Cas 1047 (Nc 1827^) (CCED Pa 1251).See Carlisle v.United States, 23US ^l^Wall) 147 (1272).^^^.i^^. at 154-55. Note again the words "domiciled" and "residence" areuscdintcrchangcably.AG0^3^4a2630 MILITARY LAWREVIEWV AFFIRMATIVE DEFENSESA^^(7^A^^^^^Will anything negate the crime of treason?Witb a survey oftbeEnglisb cases asaguideitis tempting to answer inthe negative. For hundreds of years head after head rolled from theTyburn blockaftertrialswbichwerelittlemorethan formality,andunder circumstances where an acquittal could be dangerousfor the jury.i^i In sucb a setting any affirmative defense wasdoubly dangerous since the very nature of such defenseadmitsthe acts complained of but seeks to excuse or justify them byattacking some otherelement of theoffense. I t i s n o t surprising,therefore, that allbut a scattered few chosetoplead not guiltyand,with the lawagainst them, endeavor toargue the facts.Of those few who have attempted to assert affirmative defensessomehavebottomed their relianceongrounds of lackof citizenship.^^^ One notable exception, andastudy in the futilityof it all,wasthecelebrated case of SirWalterRalcigh.^^^ Tried in 1603,Raleigh was convicted of treason by plotting rebellion. His sentence todeathwassuspendedandhelanguishedinprison f o r l 4years. Subsequently hewas released andcommissionedto leadamilitary expedition to Guiana which involved fighting with theSpanish.By thetime he returned to England the political situationhad shifted and England was currying favor with Spain. TheSpanish minister demanded his execution. Not knowing any offense to try him for,the authorities decided merely tovacatetheold suspended death sentence and execute Raleigb for treason.Heurged in vain that the Commission fromthe king had amountedtoapardonB^^ AformerLordChancellorandmostofthelawyersin England agreed with bim.^^^ Nevertheless the Lord ChiefJustice ruledotberwise.^^^ Thepardonmust be specific, he held,itcouldnotbe implied. Raleigh went totheblock. Constructivetreasonwasaone edged sword;itcutonly in favorof theprosecution.^^^Following the acquittal of Sir Nicholas Throckmorton, 1 How. St.Tr 869 (15^4), an cnragcdjudgcordcredtbc jury imprisonedand subsequently tinedthcm heavily.^^^^ Sec notes 114-49 .^^^^^^.and text accompanying.^^^^Trialof Sir Walter P^alcigh, 2How St. Tr I (1603)^^^7^at34.^^^7^^^^^^To further point up the hopelessness of the situation it should benoted that the Lord Chief Justice was none otherthan Sir Edward Coke,whohadprosccutcd Palcighatthcoriginaltrial.AG0^324a2^TREASONOther efforts at raisingaffirmative defenses havefaced equallybleak results. Drunkenness has been raised, but evidence that thedefendant was in a state of ambulatory stupefaction has beenconsidered insufficient to establishadefensetoacharge of treasonby resisting law olUcers.^^^ Nor may the motive of the accused,that hegenuinely believes what he doesis in thebest interestsof bis country, be raised as bearing on his intent to aid theenemy.^^^ While insanity has been recognized as a defense totreason, only onecase hasbeen found where itwas successfullyargued.i^^ One affirmative defense has been raised consistentlyenough tobe treatedseparately.That defense is duress,the deprivationof anindividual'sfreewilltoact.B^^^^^^The defense of duress was first fully considered following therebellion of 1.745 that came to grief at the Battle of Culloden.Alexander MacGrowther had participatedin that rebellion. At histrial, witnesses testified that he had been seen on several occasionswith the rebel army and wearing its uniform.^^^ MacGrowtherasserted,however,thathehadbeenamost unwilling participant.He had joinedthe rebel army,this he conceded.But,he contended,behad done so only after theDuke of Perth, in whoseregimenthehadserved,badthreatenedtoburnthehousesanddestroytbecrops of any ofhis tenants who desisted. Even with this, MacGrowther argued,behad hesitated,until he was told hewould bewould beforceably bound andtaken along anyway.^^^LordChiefJustice Lee was not persuaded. He instructed thejury: "IT^befear ofhaving housesburnt, or goods spoiled, . . .is no excusefor joining and marching with rebels The only force that dothexcuse,isaforceuponthe person, andprcsent fear of death; andtbisforce and fear must continue allthetime theparty remainswiththe rebels."^^^MacGrowther was foundguiltybuthis argument was not entirelyunsuccessfulfor be was later reprieved.While ashortened version of tbe^^^G^^^^^^^rule was citedas^^7^^^inthe.^c^^^^^case,i^ itwas first given seriousconsid^^^SecTrialof GcorgcPurchasc, 15 How St, Tr 651 (1710)^^^Bestv UnitedStates, 184F,^d 131(1stCir), cert denied, 340 U.S.939(19^0),SccTrial of James Hadticld,27 How St.Tr 1281 (1800)^^^Trialof AlcxandcrMacGrowther, 18How S^.Tr 391,392 (1746)^^^Id at393^^^1dat394^^^l^espublicavMcCarty,2US (2 Dail) 86(1781)AI^0^3^4B3030 MILITARY LAWREVIEWeration in this country in ^^^^^^^^^^^^.^ v. V^^^^^,^^^ one of thecases growing out of the Whiskey Rebellion. Vigol's contentionseems tobavebeen morethat hewas caught u p i n t h e spirit ofthings than that he was actually forced toparticipated. His defensefound no favor witb Justice Patterson who instructed thejury in words similar to those employed by LordChief Justice Leesome50yearsearlier.Commentingonthereasonbebind the rulethejudge stated:I f indeed suchcircumstanccs [apprehension of somethinglcssthan inunediatcfcarof deathj could avaiLitwouldbc inthcpowcr of cvcrycraftyleader of tumults and rebellion, to indemnify his followers, by utteringprevious menaces; an avenue would be forever open for the escape ofunsuccessful guilt; and the whole fabric of society must inevitably, belaid prostrate.'"A vigorous assault on the ^^^(^^i^^^^^^^^ rule was leveled in1815by William Pinkney, attorney for John Hodges who wastriedfor treason for returningfour British stragglers whohadbeen taken prisoner duringthe British withdrawal from Washington in the war of 1 8 1 2 . I t appeared tbat the British hadthreatened toburnthetownof UpperMarlboro andhold womenand children hostages until the men were returned. Pinkneystressed the military severity of the situation in an eloquentspeech. He argued:^T^he enemy were in complete power in the district. , . . They wereunaw^d by the thing which we called an army, for it had fled in everydirection. They were omnipotent. , , , They menaced pillage and confligration; and after they had wantonly destroyed cditices which allcivilised warfarehad hitherto respected, was ittobcbclicvcdthatthcywould spare a petty village, w^hich had renewed hostilities, before thesealof its capitulation was dry7Thcrc was menace; power to execute;probability, r^^y, certainty, tbat it ^vouldbe ex^^ut^d. Ho^, tb^n, ^anyouIind a wicked and traitorous motive in the breast of my clientsGiven weakinstructionsbyanuncertaincourt thejury agreedwith Pinkney, and "without hesitating a moment," returned afindingof "not guilty."^^^The ^^^^^.^ case appears to represent a departure from the.^^^G^^w^^^^rule. I f so, it wasonly temporary. TheCivil Warbrought aprompt re-recognition of therule,^^^ which has been^^^2US,(2Dall) 346 (1795),^^^7^ at 347,United States v.Hodgcs, 26 FcdCas 332 (No 15374) (CCD Md.1815),^^^^^ at 335.^^^^^ at 336.^^^SccUnitcd Statesv Greiner, 26 Fed Cas 36,39 (No 15262) (^,D.Pa 1861),ACe23^^^31TREASONreassertedtothis day. If any relaxation of the rulecanbe foundinthe (^^^^r^case,^^^ i t i s only totheextent that the coercionorcompulsion hasbeenextendedfromthreatof immediate deathtoinclude threat of immediate serious bodily injury. This can hardlybeconsideredtheopeningof adoor.Only one more case need detainus.In the trialof "Tokyo Rose"thedefenseconceded that therule announced inG^^^^^^was correct whereapplied within the United States, but argued that itwas an unsatisfactory rule when the accused was in an enemycountry, for in such situations he was unable to get protectionfromthe United States and the compulsion was on the part oftheenemygovernmentitself.i^iRecognizingtbat thismight holdtrueforan individual conscripted into tbe enemy army,the courtresponded:Wc know of no rule that wouldpcrmit one who isundcr the protectionof an enemy to claimimmunityfromprosccution fortrcasonmcrdybysetting a claimof mental fear of possibly future action on the part ofthe enemy.'"Thus it has been seen that while the legal rule on duress asapplied totreasonseemsstrictonitsface,itbas notbeenharshin application. Where the threat has proved real enough thecourtshave not been harshontheindividual affected even thoughthe threat hasbeen less than that required to excusehim by law.TbeUnited States citizen, asdoesits soldier, oweshiscountryadeterminationtoresist by allmeans within his power, andonlywhenhehasbeenbrought tothelastditchof resistance maybesave hislife at the temporary expense of thatduty.1^7 7^^^^^77^^^^^B^^1^(^^7^^.^B^.^(^A^TheTrialCounseladdressedthecourt: " I f any member of thecourt orthe law officer is awareof any facts, which hebelievcsmay be a ground for challenge by either side against him, heshould now state such facts." A Lieutenant turned to the Law01ficer:"Sir, Ichallengemyself onthegroundsthatlam hostileto tbe accused and that prior to tbe convening of tbis courtlhaveformulated tbe opinion and expressed the opinion that the accusedisatraitor.^^^^^^^^Gillarsv,UnitcdStatcs,182F.2d 962,976 ( D C C i r 1950)^^^D'Aquinov,Unitcd States, 192F,2d 338 (9th C i r ) , cer^. defied, 343U,S, 935(1951)^^^^d.at^^9.Statement of Lt Schowalter, disqualifying himself as a member ofthe court United States v, Batchelor, 7 U S C M A 354, 362, 22 C,^,^,144,152(1956)AGO^^^^a3230 MILITARY LAW REVIEWBut "treason «s such is not an offense properly cognizable bya court-martial." These are the words of no less of an authoritythan Colonel Winthrop.^"^ Yet almost immediately the effect ofthis conclusion becomes blurred, It is for an excellent reason thatWinthrop italicizes the words "as such." All will readily admitthat the word "treason" has never appeared in the articles of warwhich, since 1776, bave governed the armies of the United States.Yet Winthrop feels compelled to explain that the articles concerning relieving and communicating with the enemy are "treasonablein tbeir nature" and he quotes with approval such definitions ofthe offenses as "overt acts of treason" and "closely allied totreason." '"^ The Colonel concludes: "Whenever, therefore, anovert act of the class specified in these Articles gives substantialaid and comfort to the enemy, and thus evidences, so far forth,an adherence to his cause, it can scarcely be regarded as less thanan act of treason." ^'^Tbe two articles of war referred to by Winthrop have subsequently synthesized into the present Article 104 of the Uniform.Code of Military Jusilce which defines the offense as follows:Any person who—(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or(2) without proper authority, knowingly harbors or protects or givesintelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death orsuch other punishment as a court-martial or military commission maydirect.The Code provision, like the civil law of treason, may be tracedfor its antecedents to the middle ages. As a matter of fact, Winthrop finds the basis for the substantive provisions of Article 104in tbe military code of Gustavus Adolphus in 1621.1'''The equivalent English provisions appeared as Articles 17 and18 of tbe British Articles of War of 1765 which were in forceat the beginning of the Revolutionary War.''^'^ These articles werelifted, almost verbatim, into the American Articles of War of'•'See WINTHROP, MILITARY LAW AND PRECEDENTS 629 (2d ed. 1920).'^'^ Ibid. Winthrop was commmcnting on the 45th and 46th Articles ofWar of 1874.''•'Id. at 629-30.-"WINTHROP, op. cit. supra note 174, at 907. Specifically, see Articles67-72, 76, 77. The offense antedates even that; see, for example, the trialof Marshall D'Audreham in 1367, noted in Keen, Treason Trials Under theLaw of Arms, 112 ROYAL HIST. SOC. TRANS. 15th 100 (1961).WINTHROP, op. cit. supra note 174, at 931.(J^AGO 5354B33TREASON1770,1''^ and in substance describe the offense contemplated byArticle 104.^^^Only one minor variation seems worth noting. Tbe originalprovisionpunishing aiding the enemy limited sucb assistanceto"money, victuals, or ammunition,"^^^ andthe languageremainedunchanged in Article 45 of the 1874ArticlesofWar.^^^ But timesbad canged. The day where aiding the enemy was limited bythe very nature of warfare itself was over. The CivilWar hadpointed out a myriad of new ways to aid enemies. Winthrop,awareof theunduerestriction,consideredthe old phraseology tobe "baldand imperfect."1^^ Hearguedtbat a change was necessary,and suggested theinsertion of an additionalphrase suchas"or otber thing" or "otherwise."^^^ It may be that the properapproaehshouldnothavebeentoadd more words,but rather tosubtract afew.The provision could havebeenreduced simply to"Whosoever relieves the enemy." The difficulty may have beenthat this result would have placed on the courts the burden ofinterpreting the meaning of "relieves," and opened the door tothe return of the "constructive treasons" long feared by theEnglish.Congressapparentlychose togo along with Winthrop'srecommendation. In enacting tbe Articles of War of 1916, the words"or other thing" were inserted.Perhaps Congress selected thewrongphrase. The addedlanguageachievedthe purpose of substantially broadening the scope of the offense, but createdaproblem of semantics in the ^^.^^^case.i^^ Olson had achieved notorietyas anorator in North Korean prisoncamps. Atthe behestof hiscaptorshe engaged inpro-Communist and anti-American speechmaking with the mission of "educating" his fellow prisoners.Prosecuted under Article 104, Olson contended tbat making aspeecbwas not aiding the enemywith any "thing." In atwo toonedecisiontheBoardof Review disagreed.i^^ Noting that aiding^•^Id, at 953, Artides 27-28,The Court of M^ilitary Appeals ha^ characterised Artide 104 asbearing a ^^striking resemblance^^ to its 1775 counterpart. See United Statesv,Batchelor,7U.S.C,l^,A,354,368,22 C.M.I^,144,158 (1956),'^'WiNrnROr,ep.^^^,.^^^^^^note174, at 953,Artide 27,Aet of 22 .June 1874, Title ^ I V , C h , 5, art, 45, 18 Stat, 233^^^^l^T^RO^^op..^^^^^^ note 174, at 631,^^^7^^B^Act of 29 August 1916,^3, Artide 81; 39 Stat,619,^^^United States v,Glson,7U.S,C,l^l,A. 460, 22 C.^,R 250 (1957),^^^CM 384483 Olson, 20 C,M,I^,,461 (1956),^.^'^,7U,S,C,M,A,460,22C,^,l^.250 (1957).AG0^3^483430 MILITARY LAWREVIEWthe enemyby participating in propaganda radio broadcasts hadbeen sufficient to predicate at least three civil convictions fortreason,!^^ tbe Board of Reviewconcluded that thepsychologicalaspects of warfarehad "become as importantas arms,ammunition, and guided missiles."^^^ The Court of i^lilitary Appealsviewed itotherwise.Tracingthehistoryof Article 104,the courtconcluded tbat the word "thing" must be equated to "tangibleobject."1^^ Olson's conviction, however, was sustained on theground that the specification still described the Article 104 offenseof communicating,correspondingorholdingany intercourse withthe en^my.i^i The military construction concerning tbe use oftbe words"oroth^rthiiig^^ is important as the only area wheremilitary rule is different from the civil rules applicable to treasonby aiding the enemy.Ithasbeen suggested that Article 104definesamilitarylawoftreason. The objections tothat are many. Wh^re in Article 104is any requirement that a conviction mustbebased onthe testimony oftwo wi^^iessestothesame overt act? Forgetting,forthemoment, the crime of treason by levying war, where in thetreason statute is aiding tbe enemy limited to"arms,ammunition,supplies,money, or other thing"?lf the two offenses are trulydifferent, in what respects are they different?An arguable distinction advanced by Winthrop between thect^^nses described by Article 104 and treason is that the latterifaspecific intent offense; that is,there must be proof of an intenttobetray,i--Butthisviewisnotuncontested.Dean Miller of DukeUniversity takes acontrary approach. Hestates: "Inorder thatthe crime of treason be committed there must be an intent.However no specific intent is required. It is sufficient that thed^fendent intended todotheprohibitedact."i^^ I t i s well settledthatthe offenses describedby Article 104 require only a generalintent.i^^Theproblem of intent in treason ^^.^-^^-^^.^ Article 104,is onewith which the courts have wrestled with only limited success.^^^20CMP at464^^^7^at463^' •^^ United Statesv. Glson, 7 U S C M A 460,467, 22 CMR 250,257(1957)7^ at 468,22 C M P at258^-Sec WiNTHR^p,^^^^..^^^^^^ note 174, at 630MlLLER,CRIMINALLAW 502 (1934)^^^^ See MANUAL EOR CouRTS-MARTlAL, Ul^lTEO STATES, 1951, para. 183;United Statesv. Batchelor, 7 U S C M A 354,22 C M R 144(192^^.AG02324^3^TREASONTht problem was squarely raised in the case of Martin v. Young,a habeas corpus proceeding involving the application of Article3a, Uniform Code of Military Justice, to a serviceman who hadbeen discharged and reenlisted subsequent to alleged Article 104offenses.This provision permitted court-martial for an offensecommitted in a previous enlistment, which would otherwise havebeen prohibited, where tbe offense was punishable by confinementfor five years or more and could not be tried in any United Statescourt.^^^ The Government contended that Martin met this criteriaand proceeded to charge him under Article 104 for offenses committed in a previous enlistment while a prisoner of war in Korea.The Government's argument was almost contemptuously brushedaeide by the court. The conduct alleged against Martin, held tbecourt, would also, inter alia, constitute treason and hence he wassubject to prosecution in United States courts under civilianfederal law."' In dealing with tbe argument tbat treason was aspecific intent offense while Article 104 was not, the court hedged.Looking to the specification itself the court found Martin chargedwith giving aid to the enemy "wrongfully, unlawfully, and knowingly."This, the court held, imports "criminality" and it wasunnecessary to determine whether or not Article 104 denounceda general intent offense.Just what the court meant by "criminality" was never made clear.The meaning of the holding in the Mai fin case was subsequentlydiscussed by tbe Court of Military Appeals in the Batchelor decision.2°'^ The court referred without comment to Winthrop's conclusion that treason required specific intent and went on to holdthat Article 104 required only general intent.^°^ Discussing thecase of Martin v. Young tbe court found nothing inconsistent withtbat holding. It concluded: "What the judge did not say is thatArticle 104 requires a specific intent, or that it prescribes theoffense of treason, or that the Government is prohibited fromoverproving its case in prosecutions under Article 104." -""^ Concerned with the intent required under Article 104, the Court ofMilitary Appeals can be accused of looking at Martin v. Young"= Martin v. Young, 134F.Supp. 204 (N.D. Cal. 1955).UNIFORM CODE OF MILITARY JUSTICE, Article 3a.18 U.S.C. § 2381 (1958). See Martin v. Young, 134 F.Supp. 204, 207(N.D. Cal. 1955).7^. at 20g.See zW. at 208.2 0 " UnitedStates v. Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956).i ' l l Id. at 368, 22 C.M.R. at 158." /6t(f.AGO 5364B773630 MILITARY LAWREVIEWthrough military justiceglasses.lt is suggested thatthe languagein that case may well be read,notforthe propositionthat Article104 requires specific intent, bLitthattreason requires somethingless.Support for this interpretation may be bolstered by a closelookattbelanguage foundinthe Supreme Court opinion intheC^^^^^^^^ case.^^^ Since intent must be inferred from conduct ofsome sort, tbe court concluded it would be permissible to drawtheusualreasonableinferencesastointentfromtheovertacts.^^^Tbis language indicates tbat something less thanproof of specificintent will suffice.Tbeanalogy of Article 104to treason was considered tangentially inthe ^^^c^^^^^^^^case.-^^ Theaccusedthere contendedthatArticle 104 was unconstitutional. The court saw the thrustof hiscontentionasimplying that the articlerepresentsonlyaparticularizationof differentovert acts of treasom^^^W^henviewed moreclosely it appears the contention was actually broader; that byapplyingArticle 104 to "anyperson," and thus including personsnot otherwise subject to tbe Code, Congress was purporting toextendthe definition of treason. Tbis would be specifically prohibitedby the Constitution.Tbe obviouspath to avoid this prohibition mould have beenforthe court to hold thatArticle 104 andtreason were two separate offenses,This thecourtdeclinedto do,preferring not to reach sucha"broadproblem."^^'^ Realizing thatthis approach did nothing to solve theproblem, the court rationalized further that since Dickenson was clearly a person subjectto the Code, he had no standing to try to"vindicate the Constitutionalrights" of somethirdparty.-^^^Tbe close relationship of Article 104 totreason isbolsteredbyanexaminationof some of the rules of lawappliedby the Courtof Military Appeals. When faced with problems concerning thesubstantivelaw to be applied under Article 104, tbe court hasturned to tbeciviltreasoncases.Thus instructionsbyalaw officerwhich were identical to those approved by Federal coLirts asstating thelaw of the affirmative defense of duress to treason-^^^^ Cramerv. United States,325 US 1 (1944)^^•^See:i^.at3L-^^^ United Statesv, Dickenson, 6 U S C M A 438,20 CMR 154 (1955)^^^^^Id at 442^22CMR atl64^^•See:ib:id.See ibid.78AG0^32^537TREASONhave been upheld in three cases,^°^ The civilian rule concerningthe lack of motive as an excuse for treason has been applied toArticle 104,^^° Tbe definition of "enemy" has been lifted from itscivilian counterpart.^!^ The convictions of the "radio traitors"of World War I I have been applied for the proposition that theobligations of citizenship continue to rest on the shoulders of oneinside a foreign country and subject to the local rules of theenemy.212 Indeed, while not required for an Article 104 conviction,the Army has shown itself not unmindful of the two witnessesrule,2!^ Conversely, the civilian courts have not hesitated to prosecute for treason individuals who, by reason of a break in service,were lost to military jurisdiction.^^*The usefulness of Article 104 is difficult to gauge. Records ofmilitary courts are woefully inadequate to permit research on theextent of its historical application. It is thus impossible to compileany statistics concerning the number of individuals who havebeen tried and convicted by military courts prior to the enactmentof the Uniform Code. Only two cases involving World War I Iprosecutions in violafion of Article of War 81 ever reached theBoard of Review level and both involved offenses committedwithin the United States.^^^ Following the Korean War the offenseachieved some vitality as a vehicle for bringing prisoner of warcollaborators to trial. It is reported that ten of these individualswere charged under Article 104 and eight convicted.^^s But itscomparative lack of use in no way imports obsolescence. In anage where increased psychological and sophisticated pressuresmay mold the minds of some to ignore their obligations of loyaltySee United States v. Olson, 7 U.S.C.M.A. 460, 22 C.M.R. 250 (1957) ;United States v. Fleming, 7 U.S.C.M.A. 543, 23 C.M.R. 7 (1957), CM 388546,Bayes, 22 C.M.R. 487 (1956),;7efifzo/z/o7-revww (fgnW, 7 U.S.C.M.A. 798,23 C.M.R. 421, (1957).See United States v. Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144(1956).See United States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154(1955) .See United States v, Olson, 7 U.S.C.M.A. 460, 22 C.M.R. 250 (1957).SeeU.S.DEP'T OF ARMY, FIELD MANUAL 19-5,CIVIL DISTURB-ANCESAND DISASTERS para. 1626 (1958).See United States v. Monti, 100 F.Supp. 209 (E.D.N.Y. 1951); UnitedStates V. Provoo, 125 F.Supp. 185 (S.D.N.Y. 1954), rev'd, 215 F.2d 531 (2dCir. 1954), 2d indictment dismissed, 17 F.R.D. 183 (D. Md. 1955), aff'd percwrzam, 350 U.S. 857 (1955).CM 310327, Leonhard, 61 B.R. 233 (1946); CM 260393, Kissman(B.R., 24 Aug. 1944).Note, Misconduct in the Prison Camp, 56 COLUM. L. REV. 709, 745-46(1956) .AGO 6364Byg3830 ^IILITARY LAWREVIEWto theircountry,amilitary lawof treasoncontinues tobenecessary to provide effective deterrent and adequate punishment.VIL SUMMARYAsurvey of the law of treason leaves little room for conclusions.Itis,irdeed.ahistory lesson in which,contraryto Orwell, the pastcontrols thepresent Atthe outset, it cancei-tainly be observedthat the currentlaw, bothas enactedby statute and interpretedby the courtsis heavily dependent onits Englishantecedents. Inevery area the law has been found to have derived from its precedents and twentieth century judges have continued to rely onopinions expressed by their ancestors, often hundreds of years ago.The English l^w of treason was found to have enjoyed wideand strict application and tohareresulted in perhaps thousandsof executions. In this areathe United States courts have failedto keeppace.While castigating treasonasthehighest of crimes,tbe American courtshave displayed more concern for individualrights arid less for governmental vengeance. In contrast withtbe English experience, not one man has ever been executed forcommitting treason againstthe United States.^^^Similar generalizations maybe made with respect to Article104, the military law of treason Colonel W^intbrop to tbe contrary,it appears impractical to call that offense by any otber name.While certain legal distinctions may be found between the twooffenses they are more than outweighed by the similarities. I fthemilitary law is narrower in scope than its civiliancounterpart,it isbecausehistory has shown noneed f o r a wider application.As a result any number of treasonable acts may be envisagedwhicbwouldnotviolatetheconductdenouncedbyArticle 104.Aprimeexamplewouldbeorganized resistance tothe enforcementof afederal statuteorcourt order.But notasingle instance maybe conceived where the act that violates Article 104 would notalso constitute treason.Therebavebeennotrialsfor treason inthiscountryforperhapsfifteenyears.It may be partially for thisreasonthat manywriters, suchas Dame Rebecca West, suggest that treason hasentered an area of obsolescence and is passing rapidly to theobsolete.Inatime of "cold war"as we know ittoday,there seems-^^John Brown was executed for treason committed against the State ofVirginia. See note 54.^^^^^^ and text accompanyingAGO 23^4a39TREASONlittle chance that treason can legally be committed. However ahost of related offenses, such as espionage, sedition, advocatingthe overthrow of theGovernment,andfailingto register asasubversive organization, appear adequate to ftilfill the security needsof the state during such a period. But this fact alone does notcompel tbe conclusion that the law of treason has no place inmodern society. Today treachery and disloyalty areamore realand seriousfearthanever before. The peacetime traitor should,by whatever law is necessary, be penalized f o r t h e evil of hisworks and the wartime traitor punished forthe villainthat he is.AG0^3^4a^40


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