Hastings Law Journal


Treason is the only crime defined in the Constitution. It occupies this notable position neither because the framers were particularly fearful of the effects of traitorous activities nor because they believed it to be far more heinous than all other crimes. Rather, the available historical notes, and the language of the provision itself, make clear that the reason the constitution's authors included a definition for the crime of treason was because they were concerned with what might happen to those accused of the crime if it were not carefully circumscribed. Treason is a loaded concept, carrying with it notions of deception and betrayal in the broadest sense. It is disloyalty not just toward another human being but toward an entire country, and it threatens national security. It is these heavy, emotional connotations of the term coupled with the fact that charges of treason arise almost exclusively in times of national crises, which explain its presence in the language of the constitution. The framers felt it was critical not only to include a definition of the crime in the charter document but to carefully craft the language to avoid its broad application during times of war, unrest, or intrigue, when passions run high and legal lines of proof are blurred.

While the exacting requirements of the treason offense and the historical reluctance of the courts to expand that definition, even in exigent circumstances, has served to protect the rights and liberties of criminal defendants, the treason offense still poses a danger to the fair and just functioning of the criminal justice system. The recent case involving American Taliban soldier John Walker Lindh (Walker) provides an illustration.

In the throes of post-September 11 anger and fear, many politicians and prominent commentators demanded that Walker be tried for the crime of treason. Little was known about what Walker did in Afghanistan, nor whether any of it was directed against Americans. Nevertheless, thousands of people had been killed, no one knew where Osama bin Laden was hiding, and this young Muslim convert could serve our national need for retribution. Born and bred on American soil, he had turned his back on his country and, therefore, should pay for what had been done to its people, its stability. It is just this line of thinking, however, during just such volatile times, that the exacting standard of the treason offense was crafted to protect against. The government simply could not sustain a treason charge against Walker. Nevertheless, much of the damage had already been wrought. Disturbingly, many of those who berated the government for failing to indict Walker for treason were lawyers, which would seem to carry with it the obligation to make oneself aware of the legal standard of proof for treason before making such highly charged accusations. Although it is true that the government did not include a treason charge in the indictment, the inevitable hysteria that accompanies even an accusation of treason left a permanent stain on Walker. It is perhaps, for this reason, that his lawyers believed a plea bargain was the safest approach. They undoubtedly felt that those in the government who had already labeled their client a traitor had severely undermined his ability to obtain a fair trial. Thus, Walker will spend a large part of his adult life in prison, while many will remain unaware of the damaging toll treason accusations can exact on a system of justice that is built on the idea of calm reflection and legal standards of proof not just for the protection of the individual but for the protection of all.

This Note defines the elements of the crime of treason and the limited and challenging ways to prove those elements in the courts. This examination demonstrates the intent of the framers of the Constitution to shield Americans from a government that might abuse its power with overreaching treason prosecutions, particularly during volatile times. This discussion is intended to serve as an illustration of the danger to the system as a whole of expanding the law in reactionary ways, making insupportable allegations and incriminating individuals before they are given their day in court.

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