Appendix: Quiz Yourself!

The following ten hypothetical questions allow you to test your basic knowledge of American treason law. (The answers appear after the questions section.)

  1. A White House employee was recently quoted in the New York Times as stating the president was an “idiot” and “completely unprepared to lead the country in the event of a national security crisis.” The president has responded by asking the Department of Justice to consider treason charges against both the employee and the New York Times. Have either of these parties committed treason against the United States?
  2. Congress has recently enacted a law stating that it is treason for any person to divulge American national security secrets to any foreign nation or any foreign citizen. Is this law constitutional?
  3. A group called Americans for Open Borders believes that all immigration laws are unjust and unfair. They call for a nationwide attack on Customs and Border Patrol (CBP) and Immigrations and Custom Enforcement (ICE) offices on the anniversary of the 2016 presidential election. Over ten thousand people, many armed with guns, attack these offices nationwide and cause many of the offices to shut down. Federal officers manage to suppress the attacks and arrest nearly one thousand people. Can the arrestees be convicted of treason by levying war against the United States?
  4. Ramona Marshall, an American citizen, recently acquired a military-grade tank. Convinced that the American government was in league with the devil, Marshall drove the tank to the Pentagon and used the tank’s large gun to fire numerous rounds at the Pentagon. Marshall was finally captured, but her attack killed forty-five Pentagon employees and injured over a hundred more. Can Marshall be convicted of treason by levying war against the United States?
  5. California has recently charged Gary Hanson, a California citizen, with treason against the state of California for launching a cyberattack on the state’s prisons. The attack allowed numerous prisoners to escape, and the state claims that Hanson’s actions constitute levying war against the state of California. Hanson has moved to dismiss his indictment on the ground that California has no authority to prosecute cases of treason. Will Hanson’s motion be granted?
  6. Charles Beaumont, a French citizen, has been living in Baltimore, Maryland, for the past ten years. Recently, the federal government has learned that Beaumont has been providing significant sums of money to Al-Qaeda. Can Beaumont be convicted of treason against the United States?
  7. The United States is seeking to host the 2032 Summer Olympics, as are several other nations, including Argentina. An employee of the United States Department of State, with responsibility for the U.S. Olympic bid, is secretly on the payroll of Argentina, and has provided Argentina with detailed information about the U.S. bid, including a description of the bid’s strongest flaws. Recently, the employee’s actions were discovered by the FBI. Can the employee be convicted of treason against the United States?
  8. During World War II, a German agent secretly entered the United States. He befriended a young woman, who agreed to give him $5,000 to buy a car. The agent used the car to conduct acts of sabotage against American war industries. At the time the woman gave him the money, she did not know the man was a German agent. Can she be convicted of treason for providing aid and comfort to the enemy?
  9. During the invasion of Afghanistan following 9/11, an American citizen posted a blog entry praising the Taliban government of Afghanistan and arguing that American intervention in Afghanistan was illegal. Could he be convicted of treason for providing aid and comfort to the enemy?
  10. The FBI suspects that Carla Roberts, an employee of the Department of Defense, is passing military secrets to a nation with whom the United States is at war. Late one night, an undercover agent meets with Roberts, who admits that she has transmitted military information to the enemy. Is the agent’s testimony about this event sufficient to convict Roberts of treason?

ANSWERS

  1. No. Under Article III of the Constitution, treason is limited to “levying war against the United States, or adhering to their enemies, giving them aid and comfort.” Criticism of the president, even from a White House employee, is not an act of levying war or of adhering to enemies. The president could fire the employee, but the employee cannot be prosecuted for treason. Similarly, the New York Times cannot be prosecuted for printing the employee’s statement.
  2. No. Under Article III, treason consists only of levying war against [the United States,] or adhering to their enemies, giving them aid and comfort. Congress lacks the power to alter this definition through legislation. Because some acts of espionage are not treason (for example, if the secrets are given to a nation with whom we are not at war), this statute improperly extends the constitutional definition of treason.
  3. Probably not. Under late-eighteenth- and early-nineteenth-century precedents, these acts would constitute levying war against the United States. The closest analogy would be to the Whiskey Rebellion of 1794, when thousands of men marched to resist the federal excise tax on whiskey. If a court adhered to these precedents, Americans for Open Borders did commit treason. However, later cases suggest that treason by levying war requires a design to overthrow the government completely, rather than simply frustrate the operation of one particular law. Under the facts stated, there was no attempt to overthrow the government; instead, it was a riot to block the operation of a small subset of the laws. Most likely, a court will hold that such acts do not constitute treason. The rioters, however, have still committed numerous other offenses for which they can properly be indicted.
  4. Probably not. Judicial decisions have stated that levying war requires a use of force, which was present here. However, those decisions have also required that such force take the form of an “assembly of men” and have rejected the idea that a solitary individual is capable of levying war against the United States. In this case, there was no assembly of men. On the other hand, the cases interpreting levying war are quite dated, so it is possible that a court might reinterpret the levying war provision in light of modern technology to permit prosecutions of solitary individuals for the offense of levying war.
  5. No. Most states recognize an offense of treason against the state, which is a distinct crime from treason against the United States. States are free to create their own definitions of treason, and states have convicted individuals of treason in the 1840s, 1850s, and 1920s. Most likely, a court would uphold a state’s ability to prosecute Hanson for treason.
  6. Yes. Foreign citizens resident within the United States owe a local allegiance to the United States and are subject to American treason law. Since providing aid to Al-Qaeda is a form of aiding the enemies of the United States, Beaumont can be charged with treason.
  7. No. Unless the United States is in a state of open war with Argentina, providing sensitive information to Argentina is not a form of adhering to the enemy. The employee’s actions are disloyal to the United States, but not all disloyalty can be prosecuted as treason.
  8. No. To be convicted of treason, a person must have intended to betray the United States. Even though she gave aid and comfort to the enemy, she did not do so either purposefully or knowingly, and therefore lacked the required traitorous intent.
  9. No. Criticism of American war-making, even if potentially helpful to the enemy, is protected under the First Amendment of the U.S. Constitution. Moreover, it does not appear that the writer had the required intent to betray the United States.
  10. No. Under Article III, no person can be convicted of treason without the testimony of two witnesses to the same overt act, or confession in open court. The agent did not directly observe an overt act of treason, and even if he had, two witnesses would be required. Roberts’s confession is not sufficient for conviction since it was not made in open court.