Treason in the War on Terror

The allegedly transformed state of treason
When is a citizen guilty of treason? The Treason Clause in the U.S. Constitution was written to prosecute Americans who betrayed the country on the behalf of enemy nation-states. For much of the United States’ history, the charge was a substantial one: rarely invoked, and usually only then against those who had joined another side in wartime.
In the post 9/11 era, however, the U.S. faces increasing threats from amorphous, non-state actors, such as al- Qaeda. Many domestic terrorists still seem to fit the description of treasonous individuals as laid out by the Treason Clause, despite the changed nature of security threats. Nonetheless, in the entire War on Terror, only one individual, Adam Gadahn has been charged with treason, and he remains at large. Prosecutors  choose to indict treasonous actors for lesser crimes, due to the difficulty and political consequences of prosecuting treason despite technological advances that have made treason easier to detect and prove. As such, one might well consider whether the founders’ original intent has been maintained.
Getting to the Heart of Treason
In its definition of what does and does not define treason, the Constitution provides a framework for judging a citizen’s actions only through the relationship between the individual and the nation-state. As the Constitution    states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Professor Brian Carso of Misericordia University told the HPR that the clause ensures “allegiance” among citizens to the state as a “necessary  precondition of government.” Indeed, it would be difficult to imagine 18th century thinkers considering anything but.
At first glance, then, the definition of treason may appear succinct and clear. However, the ambiguity of “war,” “adhering,” and “aid and comfort” have proved challenging for legal scholars. According to Carso, the great Supreme Court Justice, John Marshall, “wrote his longest opinion of over 25,000 words in the verdict of the case of Aaron Burr.” Marshall largely struggled to qualify Burr’s assembly of boats an act of war. Professor Carso said Marshall’s verdict of innocent produced a “high standard of evidence” for conviction for treason. To this date, only 40 prosecutions of treason have occurred in U.S. history. Many did not lead to conviction. In the words of Tom Bell, Assistant Professor of History at Chapman University, treason has become something of an “artifact” in the courts. It is only considered for crimes that provoke a deep societal reaction and a sense of “communal betrayal,” as Professor Carso puts it.
A Case For Treason
Despite the high burden of evidence required for the conviction of treason, advances in technology have improved the ability to detect and prove treason. As Professor Phil Malone of the Berkman Center for Internet and Society points out, the Internet has created a whole new medium for crime. He emphasizes that the growth of global networks has flattened once insuperable barriers. “You could engage in criminal activities from your   bedroom in Topeka,” Malone muses. Indeed, Malone notes that viruses and hacking pose nearly the same potential for harm as destroying buildings.
As opportunities have increased, so have motives. Over the time of the War on Terror, America has seen increases in disloyal acts that appear to shift a citizen’s allegiance. Toni Johnson, a staff writer for the Council on Foreign Relations described an “uptick” in disloyal crimes traced to “international organizations like al- Qaeda” since 2008.
Nonetheless, increases in prosecutors’ powers defuse the likelihood that treason charges will apply to disloyal crimes. For example, in 2009, Bryant Vinas pled guilty to conspiracy to murder U.S. nationals, providing material support to Al-Qaeda, and offering expert advice and assistance. While his might seem to be treasonous,  at least in principle, Vinas was instead convicted under statutes in the Patriot Act. Indeed, the indictment of Adam Gadahn in 2006 was the first treason indictment since 1952.
The Case Dismissed
Even Gadahn might prove a special case. By acting as an enemy propagandist, Gadahn enticed a sense of “communal betrayal,” in Carso’s words. Gadahn was featured in and helped produce videos for Al-Qaeda, in which he identified himself as “Azzam the American.” Gadahn’s trial thus appears similar to the prosecution of enemy propagandists during World War II. Kristen Eichensehr, author of “Treason in the Age of Terrorism” said, “In World War II, the United States prosecuted a number of U.S. citizens who worked as propagandists for German and Japan. These were citizens who went abroad and worked in the propaganda ministry.” The only apparent change in the state of treason is that disloyal or treasonous individuals aid terrorist groups rather than countries.
The lack of prosecutions for treason, despite the similarities to the past, likewise may be traced to the inconvenience of such trials. Given Gadahn’s self-identified affiliations with Al-Qaeda, his case was relatively easy to prosecute. Carso explains that the treason clause is “restrictive” and “not an efficient way to go after a terrorist generally.” The death sentence tied to treason is far more controversial than a long prison term.
Despite the political consequences of a treason conviction, however, the term has been thrown around loosely. Media frequently portrays any type of disloyal act as treasonous. Yet, as E.J. Hilbert, the FBI agent instrumental in the indictment of Adam Gahdan, said, “Treason  is very, very specific. And it’s the only crime that is actually laid out in the Constitution.” The writers of the Constitution clearly defined treason, described its prosecution, and its punishment. The framers wanted to ensure that government could not arbitrarily take away the rights of its citizens.
A Lingering Charge
The Founding Fathers thus intended to make treason difficult to prove and created evidentiary burdens to prevent fraudulent, politically motivated, claims of treason. At face value, alternative means of prosecuting disloyal acts may seem to bypass the evidentiary burdens of treason and betray the spirit of the treason clause. Nevertheless, treason remains a frequent aspect of popular media. Even if individuals are prosecuted for conspiracy under  other laws, these laws may be, “in the public discourse, translated into the equivalent of treason” according to Professor Carso. In this sense, justice is still delivered and the framers’ original intent for the clause remains intact.
 
Sam Finegold  ’15 and Gina Kim ’15 are Staff Writers.
Image Credit: Artist HB Hall, Wikimedia