What is Treason?

With the return of Sgt. Bergdahl to the US there is a great deal of talk about treason.

Treason is unlike any other crime in US jurisprudence. The NY Sun gives a well measured treatise on this matter.

Treason is the only crime the Constitution pre-empts Congress from defining. It’s also the only crime to which such authorities as the police and the FBI mayn’t take a confession. It is the only crime of which the judicial branch is barred from convicting someone through the normal rules of due process. Treason is special, made so because of abuse by the English kings. And it has often been tested in our courts in ways that guide our thinking in the current crisis.

Treason against the United States, our Constitution says, may consist only in levying war against them or adhering to their enemies, giving them aid and comfort. Feature the liberality of that formulation. One can, even in war, dissent from our government without committing treason. The plain language suggests that one can even adhere to an enemy without committing treason. That is, an American whose family came over from, say, Germany, could have privately rooted for Germany in World War I.

Treason is defined in Article 3, Section 3 of the US Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The reason for this rather strict definition is that the English kings took a rather liberal view of treason which included sleeping with a woman of the Royal Family that you were not married to.

Bang the Princess and Hang... so to speak.

The Supreme Court has taken great care with treason. Bollman and Swartwout, two confederates of Aaron Burr, were let off by Chief Justice Marshall because conspiring to levy war, which they’d one, and actually levying war, which hadn’t been done, are two different things. The conviction of Tomoya Kawakita, who’d been born in America but was in Japan when World War II erupted and went to work in an arms plant, was sustained.

The plant used American POWs as labor. It seemed the courts were inclined to given Kawakita the benefit of the doubt but were horrified at evidence that he had struck American POWs. The Supreme Court sustained his conviction and his death sentence. President Eisenhower commuted it to life in prison; President Kennedy later pardoned him on the condition he be deported to Japan and banned from returning to American soil.

More here.