Law professor Hanah Volokh kindly sent me the following about the law of treason yesterday, in response to my fumbling remarks in last Sunday’s Rationally Selfish Webcast:
I was just listening to your Rationally Selfish Webcast that I missed last weekend. I’m not an expert in the law of treason, but I do know a little bit about it. Treason does not actually require a formal state of war or aid to a declared enemy in war.
Black’s Law Dictionary, which is probably the most widely used legal dictionary, defines treason as “the offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.”
The current federal statute criminalizing treason is 18 U.S.C. section 2381, and it reads, “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason . . . .”
Prosecution for things like espionage, terrorist acts, arson, sabotage, and conspiracy are much more common than for treason, though, even if the acts committed are technically within the definition of treason.
A person can commit treason by making war against the state in the absence of a pre-existing war. If you act to overthrow the government, that counts as treason. This idea was behind the actions taken against communists in the U.S. during the 1950s.
Confederate soldiers and government officials also committed treason against the United States even though it was not a declared war. The Confederacy took the legal position that secession was permitted and they were not treasonous because they no longer owed allegiance to the United States. The Union took the legal position that secession was not permitted and the military action was about restoring the union and putting down an illegal rebellion. After reunification, the Confederate soldiers and officials were considered to have committed treason, though the vast majority of them were pardoned.
Right now, America has many undeclared enemies, thanks to its weak and appeasing foreign policy. As a result, many actions that should be prosecuted as treasonous, such as inviting the heads of terrorist states to speak at universities — are not subject to any kind of legal action. However, my question would be how “enemies” should be defined, given a proper foreign policy. Clearly, the category would include any states with which we’re at war. As Hanah notes, people or groups attempting to wage war from within (or without) are also properly considered “enemies.” Beyond that, I could only see that the term should apply to states that a reasonable person would understand to be committed to overthrowing the US government. For various reasons, it might not be worth waging war on such states — perhaps they’re so poor as to be unable to inflict damage and/or our military is occupied with a serious threat elsewhere. Nonetheless, it would be treason to assist their efforts.