Treason is the only crime defined in the U.S. Constitution. The revolutionaries who wrote the U.S. Constitution knew very well the new government they were about to create couldn’t survive without the active support (or at least the passive submission) of most of the people.
They also realized it was going to be some time before this new republican form of government took hold among the people. The people’s allegiance would be especially important to the newborn nation’s survival in the early years following the Revolution, a time of gigantic threats from enemies inside and outside the new country.
Everything they did to further the interests of the colonies was done under threat of prosecution for treason. English prosecutions for treason weren’t pretty.
The authors of the Constitution worried that treason law would be abused because of two concerns:
1. that peaceful opposition to the government, not just rebellion, would be repressed
2. that innocent people might be convicted of treason because of perjury, passion, and/or insufficient evidence.
They were determined that disloyal feelings or opinions and the passions of the time wouldn’t be a part of the law of treason.
As much as they recognized the need for allegiance to the new government, their fear of abusive prosecutions for treason led them to adopt limitation.
By the time the Constitution was adopted, the new government and current thinking among the governing class came to limit treason to two disloyal behaviors:
· levying war against your own country
· giving aid and comfort to the enemy
The authors of the Constitution adopted these two acts and then, for more protection, added three more limits to the reach of treason:
· they banned legislatures and courts from creating new treasons;
· they required two witnesses to at least one overt (unconcealed) act of treason or a confession in open court;
· they wrote these limits into the body of the U.S. Constitution.
Treason consists of three elements.
· First, treason actus reus consists of either levying war against the United States or giving aid and comfort to the enemies of the United States.
· Second, treason mens rea consists of intentionally giving aid and comfort for the very purpose of betraying the United States.
· Third, proof of treason requires either two witnesses to the actus reus or confession in open court.
Distrust of treason prosecutions didn’t end with the adoption of the Constitution. Throughout U.S. history, the government has prosecuted only a handful of people for treason, and presidents have pardoned or at least mitigated death sentences of most of those few who’ve been found guilty.
Sedition, Sabotage, and Espionage
Treason isn’t the only crime aimed at combating disloyalty and keeping the allegiance of our citizens. Advocating the violent overthrow of the government is called sedition.
The “stirring up” could be done by speeches (seditious speech), writings (seditious libel), or agreement (seditious conspiracy). In the Smith Act of 1940, Congress made it a crime to conspire to teach or advocate overthrowing the government by force or to be a member of a group that advocated the violent overthrow of the government.
Sabotage is the crime of damaging or destroying property for the purpose of interfering with and hindering preparations for war and defense during national emergencies. The sabotage levels of culpability vary. Most often, it’s “willfully,” sometimes “with intent to,” and at least once “with reason to believe.” Whatever the exact words, it’s probably closest to the highest levels of culpability—purposely and/or knowingly.
The U.S. Code (2006, Title 18, Chapter 37, § 794) separates espionage into two crimes:
· (1) espionage during peace
· (2) espionage during war. Espionage is spying for the enemy.
The crime of espionage during war consists of collecting, recording, publishing, or communicating (or attempting to do any of these) “any information” about troop movements, ships, aircraft, or war materials and any other information “which might be useful to the enemy.”
· The penalty is death or any term of imprisonment up to life (§794[b]).
By the middle of the 1920’s, large scale sedition prosecutions under the Espionage Act largely disappeared. But it didn’t die. This is especially true during times like World War II, the Cold War, the Vietnam War, and now in Iraq and Afghanistan, when U.S. troops are engaged in combat and dangerous peacekeeping operations abroad.
The U.S. Government has occasionally prosecuted these employees. Now, the Espionage Act is back. Since 2009, the U.S. Government has charged six U.S. Government employees under the Act: Bradley Manning; Thomas Drake; Shamai Leibowitz; Stephen Jin-Woo Kim; Jeffrey Sterling; and John Kirakou.
Terrorism and Anti-Terrorism
Terrorism and Anti-Terrorism Crimes
Terrorism is the use of violence or intimidation in the pursuit of political aims. A number of sections of the U.S. Code are available for prosecuting crimes related to terrorists and terrorist organizations.
There are some specific antiterrorism crimes—mainly, U.S. Code Chapter 113B, “Terrorism” (Title 18, Part I), the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (1996), and the USA Patriot Act (2001). The code divides terrorism into two kinds: international terrorism and domestic terrorism.
According to the U.S. Code (2006), it’s a felony punishable by up to life imprisonment, or execution if someone dies, to use, to threaten to use, or attempt or conspire to use, a weapon of mass destruction against a U.S. citizen outside the United States (Title 18, Part I, Chapter 113B, § 2332a); any person or property inside the United States (§ 2332a); any property owned, leased, or used by the U.S. government inside or outside the United States (§ 2332a[3]); or any property owned, leased, or used by a foreign government inside the United States (§ 2332a[4]).
The actus reus of harboring or concealing consists of harboring or concealing persons who have committed or are about to commit a list of terrorist-related crimes.
The mens rea of harboring or concealing requires knowing (or that a reasonable person should have known) the actus reus of harboring or concealing was about to be committed. The penalty is a fine or up to 10 years of imprisonment.
The felony of providing material support was first created in the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) (§ 323), which was aimed at domestic terrorist acts. The crimes of providing material support to individuals or organizations are proximity crimes.
The term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge. The term “expert advice or assistance” means advice or assistance from scientific, technical, or other specialized knowledge.
No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may include himself) to work under that terrorist organization’s direction or control, or otherwise direct the operation of that organization.
As of September 2010, the U.S. Government had prosecuted about 1,000 terrorist cases since September 11, 2001 (TTRC 2010, 6). The top plots include only defendants inspired by jihadist ideas, namely “defendants who were formally or informally associated with an Islamist terror group—whether one with a global jihadist ideology (Al Qaeda) or a local Islamist movement (Hamas).
It also includes defendants unaffiliated with a terror group who aspired to such affiliation or who subscribed to a global jihadist ideology (TTRC 2011, 7). But it excludes terror cases not inspired by jihadist ideas, like far right (militias) or far left (environmentalist extremists).
Is the U.S. creating its own terrorists? Yes, according to the Law and Security Center. Eighty one percent(127) of the defendants in the top 50 plot cases were legal residents of the U.S.
Seventy-three (57%) were born in the U.S.; the rest had lived in the U.S. for at least 10 years and several as long as 20 years, long enough to become familiar with U.S. culture and habits (TTRC 2010, 3).
Homegrown terrorist defendants have been among high profile cases ever since 2001, but the number seemed to spike in 2010, partly because of lengthy investigations. Furthermore, some defendants spent years trying to become terrorists before they were arrested.
The statutes charged in the top 50 terrorist cases include: providing material support to terrorists; providing material support or resources to designated foreign terrorist organizations; use of weapons of mass destruction; prohibitions against the financing of terrorism; and receiving military-type training from a foreign terrorist organization.
The predominant number of cases are “material support” offenses to terrorists and terrorist organizations. A number of lower courts have decided challenges to the constitutionality of the “material support” sections.
They have reached conflicting results. Then in 2010, the U.S. Supreme Court decided that as applied to the facts of the case in Holder v. Humanitarian Law Project that the “material support” for terrorist organization was neither constitutionally vague, nor did it violate the First Amendment speech and assembly rights.
profdavid
lectures-4.docx
0
