Can a citizen of France commit treason against the United States? Can a citizen of the United States commit treason against the United Kingdom? Most people, including most lawyers and judges, would instinctively answer, “No.” A federal judge in New York, for example, recently stated that the Treason Clause “by definition can apply only to United States citizens.”1 Similarly, a prominent American law professor once wrote that treason can “be committed only by a citizen.”2
But the judge and the law professor are wrong. Treason is technically not a breach of citizenship—it is a breach of allegiance. To be subject to American treason law, a person must first owe allegiance to the United States. But in some circumstances this duty of allegiance extends to noncitizens.
The law recognizes two kinds of allegiance: permanent and temporary. Permanent allegiance is the most familiar. All citizens owe permanent allegiance to the United States, and this duty carries with them wherever they go in the world. In World War II, for example, American citizens were charged with treason against the United States for acts that they committed in Japan, Germany, and Italy.
Temporary allegiance is different. Noncitizens present in the United States owe temporary allegiance to the United States so long as they remain within the country. And if noncitizens violate that allegiance by levying war against the United States or adhering to our enemies, they can be prosecuted for treason just as citizens are. Unlike permanent allegiance, however, temporary allegiance (or local allegiance, as it is sometimes called), dissolves once the noncitizen leaves the country.
This doctrine is centuries old. In the early seventeenth century, the famous English jurist Sir Edward Coke wrote that foreign subjects were “within the protection of the King” while they were in England; such persons owed a “local obedience to the King . . . and if they commit High Treason against the King, they shall be punished as Traitors.”3
The United States Supreme Court’s most extensive discussion of allegiance came in the 1873 case of Carlisle v. United States.4 The Court stated that a citizen owed an “absolute and permanent allegiance to his government” up to the point at which he or she renounced citizenship and became a citizen of another country. By contrast, the noncitizen, “whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.” The Court noted that this “obligation of temporary allegiance by an alien resident in a friendly country” was widely recognized as a general principle by most other nations.5
The pre-1873 cases tended to vacillate on the question of whether mere presence in the country is enough, or whether the noncitizen must be resident or domiciled in the country. But the Supreme Court in Carlisle approvingly cited a treatise on international law that stated, the rights of sovereignty “extend to all strangers [resident] therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection.”6 The American rule thus suggests that the duty of temporary allegiance extends even to tourists and casual visitors.
A significant consequence of this doctrine is that the 9/11 terrorists may have committed treason, in addition to murder and other crimes. All of the terrorists were Saudi or Egyptian citizens, but they had lived in the United States for some time prior to the attacks. The attack on the Pentagon, at least, was a clear act of levying war against the United States. Since the terrorists were subject to a duty of temporary allegiance while living here, they can properly be described as traitors to the United States. Of course, they all died in the attacks, so none were ever tried. But any who survived might plausibly have been charged with treason.
There are several significant exceptions to the general rule that noncitizens owe temporary allegiance while present in the United States. The first concerns enemy soldiers. If a foreign army invades the United States, the foreign soldiers do not owe any allegiance to the United States, even though they are present within it. Why not? Because they do not receive any protection from the United States, and protection is required before any duty of allegiance attaches. The best historical example is the British soldiers who invaded the United States during the War of 1812 and set fire to Washington, DC. They were clearly levying war against the United States, but they weren’t traitors to the United States—they had no allegiance to the United States and were receiving no protection from it.
The second exception concerns ambassadors. Although English jurists debated the question whether foreign ambassadors were subject to English treason law, the better view seems to be that they are not. As Sir Matthew Hale, a prominent English judge, explained, a foreign ambassador must always be dealt with “as an enemy by the law of war or nations, and not as a traitor.”7 Ambassadors are always under the protection of their home governments, and can’t really be said to be under the protection of the government of the United States.
Historically, there was also a likely exception for members of American Indian tribes. Although the United States was frequently at war with these tribes, the federal government never prosecuted an American Indian for the crime of treason against the United States. Indeed, it was assumed that tribal members were not birthright citizens of the United States under the Fourteenth Amendment, because they weren’t technically “under the jurisdiction” of the United States. In 1924, Congress granted American citizenship to members of the Indian tribes, and they then became fully subject to American treason law.
Dual citizenship presents special problems, but the general rule is that American law will hold a dual citizen to the same standard as a non–dual citizen. In 1952, the United States Supreme Court decided the case of Tomoya Kawakita, who was a dual citizen of Japan and the United States. Kawakita was living in Japan when the war with the United States broke out, and he was later employed as an interpreter at a prisoner-of-war camp. After the war, the United States charged him with treason for acts of cruelty against American prisoners.8
Kawakita argued that a person with dual nationality “can be guilty of treason only to the country where he resides, not to the other country which claims him as a national.” The Supreme Court rejected that argument, concluding that American citizenship carries “obligations of allegiance as well as privileges and benefits.” For dual citizens, those obligations “may at times be difficult to discharge,” but one cannot adopt “fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor.” Accordingly, any acts hostile to the United States that Kawakita voluntarily performed constituted treason.9
Perhaps the most striking instance of American treason law being applied to noncitizens arose from the American occupation of the Philippines. Following the outbreak of the Spanish-American War in 1898, American forces conquered the Spanish colony of the Philippines. The peace treaty ending the war formally transferred the Philippines to the United States. A subsequent revolt by Filipino natives was brutally crushed by the United States military.10
The United States was no stranger to acquiring territory, as its significant expansion in the nineteenth century demonstrated. But prior expansions had all been accompanied by an extension of American citizenship to the territory’s inhabitants. Racist perceptions of the residents of the former Spanish colonies, however, led the United States to deny them citizenship, as well as certain constitutional rights. In a series of cases called The Insular Cases, the United States Supreme Court blessed this discrimination, concluding that American citizenship was inconsistent with colonization. In a 1901 opinion, Justice Edward Douglass White stated, “it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States.”11 These decisions placed the Filipinos—and the inhabitants of the other new territories—in a nebulous legal category. They were subject to the authority of the United States, but were not citizens of the United States, a status for which we now use the term “U.S. national.”
A “Philippine Commission,” appointed by President William McKinley and headed by future president William Howard Taft, soon enacted a treason statute for the territory. The statute defined treason as levying war against the United States or against the government of the Philippine Islands, or as adhering to their enemies, giving them aid and comfort. American officials used this authority to prosecute at least three Filipinos for treason.12 As one justice of the Philippine Supreme Court explained, “the defendant was a resident in the Philippine Islands, and owed allegiance to the United States Government in the Philippine Islands.”13
American officials had consistently refused to extend the right to jury trial to the Philippines, and the United States Supreme Court upheld this refusal in 1904. The Court reasoned that jury trials were unnecessary for the “civilized” part of the islands, since they were accustomed to Spanish jurisprudence, under which juries were unknown. The “uncivilized parts of the archipelago,” the Court continued, “were wholly unfitted to recognize the right of trial by jury.”14 The treason trials had accordingly proceeded without juries, the only such trials under the authority of the federal government for which a jury trial was denied. Congress, however, did extend the two-witness requirement to treason trials in the Philippines, and at least two defendants had their convictions reversed for failure to comply with that requirement.15
Although the Spanish-American War and its aftermath is now largely forgotten, the United States continues to hold overseas territories—Puerto Rico, the U.S. Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa. With one exception, the residents of these islands are all U.S. citizens and are subject to permanent allegiance to the United States. The exception is American Samoa, where, for complicated reasons, the inhabitants have rejected U.S. citizenship and retain the status of U.S. nationals.16 Federal statutory law, however, holds that U.S. nationals owe permanent allegiance to the United States in the same manner as citizens.17 The American Samoans are thus in the same distinctive legal position as the Filipinos were over a hundred years ago—not citizens of the United States, but nonetheless fully bound by American treason law.
Because the doctrine of temporary allegiance is so widely applied, American citizens can be subject to the treason laws of other countries when residing or traveling abroad. In 1797, an American citizen named David McLane was executed for high treason against the British government in Quebec.18 And in 1885, an American citizen named Louis Riel was executed in Regina for treason against the Dominion of Canada.19
The most well-known case is that of William Joyce, colloquially known as “Lord Haw Haw,” executed for treason against the United Kingdom for serving as a German radio propagandist during World War II.20 Joyce had been born in the United States, and was thus a United States citizen by birth. Although he spent most of his life in the United Kingdom, he never became a naturalized British subject.
Joyce’s attorneys argued that he could not be guilty of treason against the United Kingdom for his actions in Germany, because he did not owe permanent allegiance to the U.K. Once Joyce departed for Germany, they claimed, his temporary allegiance to the U.K. ended, and he was free to aid the Germans.
The British courts rejected this argument. Although they accepted the broad contours of the distinction between permanent and temporary allegiance, they ruled that in certain cases a nonsubject’s duty of allegiance survived his departure from the country. Joyce’s was such a case, because of one key distinction—although not a British subject, Joyce was using a British passport. As the Lord Chancellor put it, “the Crown in issuing a passport is assuming an onerous burden, and the holder of a passport is acquiring substantial privileges.”21 Joyce could not claim the benefits of the Crown’s protection while rejecting any corresponding duty of allegiance. But the court concluded that the duty of allegiance expired with his passport (it had expired while he was in Germany); accordingly, the treason charges were based solely on Joyce’s conduct in Germany while the passport was valid.22
Joyce’s subsequent hanging on January 3, 1946, was doubly distinctive. He was the first (and only) United States citizen ever executed in the United Kingdom for the crime of treason.23 But he was also the last person hanged in the U.K. for treason before the abolition of the death penalty. In other words, the last executed British traitor was actually an American—a vivid demonstration of the doctrine of temporary allegiance.
In the United States, the existence of state treason laws places a distinctive twist on the issue of allegiance. Do these laws require allegiance to the state, and, if so, how is that allegiance determined? Can a person who is not a citizen of a state be prosecuted for treason for an attack on that state? The issue has arisen only once, but the circumstances could not have been more dramatic—the trial of John Brown and his associates after the failed raid on Harpers Ferry, Virginia.24
Brown and his men had prepared for the raid in the neighboring state of Maryland, and when they launched their attack over the Potomac River, they arrived as soldiers, in open military hostility to the state of Virginia. There was thus a plausible argument that the men owed no allegiance to Virginia—they were analogous to members of an invading foreign army. Just as members of the British army owed no allegiance to the United States despite being present in the United States during the War of 1812, Brown’s men owed no allegiance to Virginia despite being present within it.
Brown’s attorneys made this argument, both at trial and on appeal, but the Virginia courts were unpersuaded. The trial court’s reasoning is not entirely clear, but it seemed to rely in part on the Privileges and Immunities Clause of Article IV of the U.S. Constitution, which states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The court concluded that “the Constitution did not give rights and immunities alone, but also imposed responsibilities.”25 The rationale seems to be that when Brown set foot in the state, he carried certain rights with him by force of the Constitution, and those rights carried with them a corresponding duty not to attack the state. His situation was thus quite distinct from that of a foreign army, whose members have no corresponding rights or responsibilities under the U.S. Constitution. Under this theory, mere presence in a state, even in a state of open military hostility, is sufficient to expose one to prosecution under a state’s treason laws.
The allegiance issues for two of Brown’s black associates were trickier. The attorney for Shields Green, an enslaved man, argued that a “slave could not be guilty of treason” because he was not a citizen. This argument wasn’t directly on point, because even noncitizens can owe temporary allegiance. Virginia had executed an enslaved man for treason in 1710 and again in 1778. But in a 1781 case, two dissenting judges argued that slaves were legally incapable of committing treason. A state legislative committee agreed with this conclusion, as did Thomas Jefferson, the state’s governor, and the convicted slave was pardoned.26 The judge in Green’s case followed this precedent, and the treason charge was dropped.
John Anthony Copeland, a free black man, was also charged with treason for his role in Brown’s raid. Since he was free, the slavery precedents weren’t controlling. And free blacks had been charged with treason against the United States just eight years earlier in the Christiana Riot cases. But Copeland’s attorney pointed to the U.S. Supreme Court’s notorious 1857 decision in the Dred Scott case, which had held that black Americans, whether free or enslaved, were permanently ineligible for American citizenship.27 One of the primary concerns in Chief Justice Roger Taney’s opinion was the Privileges and Immunities Clause—the same clause that had been invoked to justify Brown’s prosecution. If free African-Americans were citizens of the United States, they could enter the Southern states and be entitled to all the same privileges and rights as white citizens, a result that Taney viewed as deeply threatening to the stability of slavery.
Copeland’s attorney cleverly realized that this argument could be turned on its head. If the Privileges and Immunities Clause imposed burdens on free blacks in Southern states, such as being subject to treason prosecutions (as the government was claiming), it presumably granted them rights as well, a possibility no Southern court was eager to embrace. The judge was persuaded by this argument, and Copeland’s treason charge was dropped.28
In July 2019, Donald Trump tweeted that his administration would look into claims that Google had committed treason by working with the Chinese government.29 As chapter 10 will explain, providing assistance to the Chinese is not treason, so nothing is likely to come of this assertion. But Trump’s tweet does raise an interesting question about the scope of treason law—can a corporation be indicted for treason? Suppose an American corporation sent thousands of dollars to the German government during World War II. The corporate officers who arranged the transaction could obviously be charged with treason, but what about the corporation itself?
If we rely solely on older law, the answer is clearly no. William Blackstone’s Commentaries on the Laws of England stated, “A corporation cannot commit treason, or felony, or other crime, in its corporate capacity, though its members may, in their distinct individual capacities.”30 In 1854, the Supreme Judicial Court of Massachusetts agreed, stating that corporations “cannot be guilty of treason.”31
But in 1909, the United States Supreme Court squarely rejected Blackstone’s notion that corporations were immune from criminal indictment. In New York Central and Hudson River Railroad Co. v. United States, the Court held, “It is true that there are some crimes which, in their nature cannot be committed by corporations. But [in many other cases] we see no good reason why corporations may not be held responsible” for the crimes committed by their officers. Over the course of the twentieth century, corporations were indicted for a wide array of crimes.32
The Court didn’t specify which crimes “in their nature” were unfit for corporate punishment, although some obvious examples would include bigamy and adultery. In many ways, treason seems similar to the financial crimes with which corporations are routinely charged. A corporation chartered in an American state and headquartered in an American city could be plausibly said to owe allegiance to the United States. Or, at least, one might reasonably expect that the privilege of doing business in the United States carries with it the fairly minimal obligation of refraining from aiding our enemies in wartime or levying war against the United States. The Supreme Court has dramatically expanded corporate rights under the Constitution in recent years, ruling for corporations in numerous free speech cases, and even finding rights to assert religious freedom under the federal Religious Freedom Restoration Act.33 Since the nineteenth century, the term “citizens” in Article III’s jurisdictional requirements for the federal courts has been interpreted to include corporations.34 If corporations can receive all of these benefits under the law, there is a strong argument that they should be equally subject to responsibility.
Our existing statutory framework, however, makes it impossible to indict corporations for treason. The federal treason statute provides that treason be punished by either death or imprisonment of “not less than five years” and a fine of “not less than $10,000.” Obviously, a corporation can’t be put to death. But it can’t be imprisoned either, and the current statute does not give judges the discretion of imposing only a fine.
Congress could, of course, change the law, to specify that corporations are subject to American treason law and could be punished with a fine alone. In the event of a prosecution, a court would be faced with the difficult question of constitutionality. The corporation’s strongest argument would be that such prosecutions were impermissible under eighteenth-century law, and any expansion of the crime would be in tension with the limiting purposes of Article III. The corporation could also assert that artificial entities cannot be meaningfully said to owe allegiance to any national government, especially if the shareholders include persons from a number of foreign countries. On the other hand, the government could counter that the elements of the offense have not been changed, merely the scope of entities subject to prosecution, and that it would be anomalous to exempt corporations from treason prosecutions while exposing them to prosecution for a whole host of other offenses under American law.
How does allegiance to the United States terminate? Temporary allegiance is relatively straightforward—other than the complications raised in the Joyce case, the person simply leaves the country. But permanent allegiance, as the name suggests, is stickier. It can be shed only by voluntarily renouncing United States citizenship. In 1967, the United States Supreme Court held in Afroyim v. Rusk that the government has no unilateral power to strip a person of citizenship without his or her consent.35
To validly renounce citizenship, a U.S. citizen must voluntarily undertake one of seven acts specifically identified in a federal statute, such as “making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state,” and do so with the specific intent of relinquishing United States citizenship.36 This is a strict test, and simply declaring oneself to no longer be a U.S. citizen, for example, is insufficient.37
There are two quirks in the law, though. First, one of the renunciation methods recognized in the federal statute is “entering, or serving in, the armed forces of a foreign state if. . . . such armed forces are engaged in hostilities against the United States.”38 Of course, such acts are also acts of treason. But if a person enters into the armed forces of a hostile foreign state with the specific intent of renouncing United States citizenship, he may well be able to avoid a treason prosecution by claiming he no longer owed allegiance to the United States. This defense has several limitations. It would work only if the person was abroad (within the United States he or she would still be bound by temporary allegiance). It would apply only in those rare cases where the United States is engaged in hostilities with a foreign state (and not, say, with a terrorist group). And it would apply only to joining the enemy’s army, and not to actions such as spying for the enemy or serving as an enemy propagandist.
The second quirk is that the federal statute provides that citizenship can be renounced by “committing any act of treason against . . . the United States . . . if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.”39 This suggests that convicted traitors can be stripped of their citizenship as part of their punishment. The statute is careful to state that the renunciation occurs only at the time of conviction; otherwise defendants could escape by simply arguing that their treasonous act voided their citizenship, and correspondingly, their duty of allegiance. But it is not at all clear that conviction counts as a voluntary renunciation as required by the Afroyim decision, and this statutory provision, although not yet tested in a court of law, may well be found to be unconstitutional.
Under the doctrine of temporary allegiance, noncitizens in the United States, with a few minor exceptions, are fully subject to American treason law. The corollary of this principle is that American citizens traveling abroad are equally subject to the treason laws of foreign countries. So just as William Joyce, an American citizen, was convicted of treason against the United Kingdom, so, too, could American citizens be convicted of treason against France or Russia or Saudi Arabia. The old adage of “When in Rome, do as the Romans do” is good advice, not just for finding a decent meal, but for avoiding a treason prosecution as well.