Treason, it often is said, is the only crime defined by the Constitution. Article III, Section 3 provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort...”
There is more in Art. III, Sec. 3. The standard for conviction on a charge of treason also is set: “...No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Some people suggest “treason” only can exist during time of “war.”
First, there is an “or” between the two clauses in Art. III, Sec. 3. “Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise...” FCC v. Pacifica Foundation, 438 U.S. 726, 739-40, 98 S.Ct. 3026, 3035, 57 L.Ed.2d 1073 (1978). The word “or” is disjunctive. Reiter v. Sonotone Corp., 442 U.S. 330, 338, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979). The word “or” is used “to connect alternative terms.” The American College Dictionary, 1962 ed., p. 851. (If one wishes to “knock” me for use of a 1962 dictionary, I received it as a Christmas present when I was seven years olf; thus, yes, I am a geek. Besides, the nature of “or” as a conjunctive has not changed in the past fifty-five (55) years.)
That means one need not levy War against the United States. The “or” in Art. III, Sec. 3, means only also may commit “treason” “in adhering to their”—meaning the United States—“Enemies, giving them Aid and Comfort.”
Second, “war,” in the modern era, is passe. The United States has—or to use the language of The Framers “have”—declared “war” only five (5) times. The Revolutionary War was not a “war” but a rebellion.
In 1812 this country declared war against Great Britain. The war ended sort of as a “tie,” and the biggest military victory this country obtained occurred after the war ended—word of the Treaty of Ghent reached Washington months later because news had to travel by sailing vessel across the Atlantic Ocean. No boundaries were changed. U.S. record: 0-0-1.
The Mexican-American War was fought from 1846 to 1848. In his memoirs, Ulysses S. Grant said he never had seen such a blatant act of self-aggrandizement by one country over another. That means we took a lot of territory from Mexico, including what today are the States of New Mexico and California. We, as a Nation, were 1-0-1.
The Civil War was not a “war,” but an act of treason by the southern States that formed the Confederacy. Because President Lincoln viewed the matter as treason, he refused to negotiate with leaders of the Confederacy. Although more Americans died min the Civil War than any other military conflict in our history—Americans were killed on both sides, after all—still, it was not a war.
The Spanish-American War lasted about four (4) months in 1898. From it we obtained control over Cuba, Puerto Rico, the Phillippines, and Guam. An overmatched Spanish military, reluctant to fight the United States, was easily defeated. The U.S. record: 2-0-1.
Next we declared War against Germany and her allies and entered World War I. Although we had sold materiel and goods to both side, we supplied more to the French, English, and others arrayed against the forces of the Kaiser. Our GDP skyrocketed between the start of what would be called “the war to end all wars,” but profits here began to sag. We got into the fracas. The European soldiers who had fought in the trenches were glad to be relieved by “Yanks” who ran into machine gun fire without a clue. The War ended, we were on the side that won, and now were 3-0-1.
The last war we have fought was World War II. We joined the Allies against Hitler in Europe and the Japanese Empire in the Pacific. In a hard-fought contest, the United States won. We now are 4-0-1 (and possibly qualify for the championship rounds).
We have gone longer without a declared war than any time in our history. Art. I, Sec. 8. Here is the spacing between our wars: l815 to 1846—31 years; 1846 to 1898—52 years; 1898 to 1917—19 years; 1918 to 1941—23 years; and from 1945, and the end of World War II, to today—72 yeqars. As conflicts from Korea to Vietnam to Afghanistan/Iraq, we have dispenses with the formality of declarations of war. Declarations of war are inconvenient.
If one argues that only during times of “war” can treason occur, and since we seem to have abandoned that procedure, treason only could have occurred for three years (1812-15); two (2) years (18444-1848); four months in a sultry 1898; about two (2) years in WWI; and nearly four (4) years in World War II. That is a little over 11 years. The Framers would not have drafted a meaningless provision. United States v.Butler, 297 U.S. 1, , 56 S.Ct. 312, 319, 80 L.Ed. 477 (1836).
Third, a foreign power in a state of open hostility with the United States is an “enemy,” within the definition of treason. Stephan v. United States, 133 F.2d 87, 94 (6th Cir. 1943). By statute, an “enemy” means “any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States.” 50 U.S.C. sec. 2204(2). There is no requirement that “war” be declared. Russia provides weapons to Taliban forces that face United States military personnel. “U.S. Military Officials Say Russia Is Arming Taliban Forces,” The Chicago Tribune, April 24, 2017.
The next segment in this series will expand on “treason” and the necessity for existence of a state of “war” to charge a person with that crime.