The forgotten constitutional law of treason and the enemy combatant problem.

• Author: Larson, Carlton F.W.

This Article argues that the issue of enemy combatant detentions should be studied through the lens of the Treason Clause of article III. Specifically, the Article argues that the Treason Clause prohibits the exercise of military authority over individuals who are subject to the law of treason, a category that includes not only United States citizens, but almost all persons merely present within the United States. From at least the seventeenth century through the nineteenth century, English and American treatise writers, public officials, and courts consistently distinguished between persons subject to the law of treason, and thus entitled to trial under the ordinary processes of the criminal courts, and persons who could be treated as enemies under military authority. This long-standing rule was abandoned without coherent explanation by the Supreme Court in the 1942 decision of Ex parte Quirin, a decision unfortunately affirmed in 2004 by Hamdi v. Rumsfeld. This Article argues for reinstatement of the traditional rule.

The Article also argues that many terrorist actions are appropriately punished as treason, either as acts of levying war against the United States or of adhering to their enemies. Rather than representing a fundamental departure from the ordinary criminal law paradigm, terrorist actions fit comfortably within it.

INTRODUCTION

For the past four years, legal experts have been debating constitutional issues surrounding the Bush Administration's so-called "war on terror." Although the details often vary greatly, two broad positions have emerged, which, for lack of better terms, can be labeled the "liberal" and the "conservative" positions. The "liberal" position roughly holds that the "war on terror" is not a true war in any meaningful international law sense; that only nations, not shadowy private organizations such as Al Qaeda, can ever be at "war" with the United States; that terrorism is best viewed as a large-scale problem of ordinary criminality; and that the detention of terrorist suspects as "enemy combatants" cannot be justified outside the context of a true war. (1) The "conservative" position, by contrast, contends that the terrorist attacks of September 11, 2001, were genuine acts of war; that full-scale military response is appropriate; that terrorists are the soldiers of a large, well-disciplined enemy that will stop at nothing to destroy the United States and our way of life; and that such persons may be held indefinitely as enemy combatants or subjected to trial by military tribunals. (2)

Whatever the merits of these conflicting positions under modern international law doctrine, they are both unsatisfying as a matter of basic constitutional law. Both positions overlook a critical portion of the Constitution, a provision that has much to teach us about the enemy combatant problem and about issues related to terrorism generally. This provision is the Treason Clause of Article III:

 Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in Open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood,

or Forfeiture except during the Life of the Person attainted. (3)

The Treason Clause, by its very terms, complicates both the liberal and conservative positions. First, contrary to the liberal view that only nations may engage in war against the United States, the Treason Clause explicitly states that individuals are capable of engaging in warlike actions--i.e., "levying war"--against it. Second, contrary to the conservative view that persons who engage in such warlike actions against the United States are subject to military authority, the Treason Clause again states exactly the opposite: persons who levy war against the United States are entitled to specific procedural protections, and they must be prosecuted in an Article III court with the prosecution bearing the burden of proof of an overt act by at least two witnesses.

The Treason Clause is one of the great forgotten clauses of the Constitution, and many well-trained lawyers might be surprised to learn that it even exists. Law school courses in constitutional law and criminal law ignore the subject entirely. As George Fletcher lamented over twenty years ago, "It]he basic criminal law course focuses on homicide, sometimes on rape and burglary, but no one discusses treason." (4) Despite occasional flurries of public interest in the subject, including the furor over the capture of John Walker Lindh in Afghanistan, (5) legal scholarship on issues relating to treason is basically moribund. Apart from the seminal work of James Willard Hurst many decades ago, (6) there is virtually no scholarship engaging doctrinal issues in American treason law. (7) No one, it appears, has accepted George Fletcher's argument that treason should be moved "to the center of our thinking about criminal law" lest we run the risk of "distorting the criminal law by overemphasizing violent crimes against persons." (8) It might be thought that the Treason Clause is a victim of its own success; that is, like Article II's requirement that the President be at least thirty-five years old, the clause is a model of clarity--little needs to be said other than restating its basic provisions, which speak perfectly well for themselves. Yet as the United States Supreme Court explained in one of only a handful of treason cases decided by the High Court, the clause's "superficial appearance of clarity and simplicity ... proves illusory when it is put to practical application. There are few subjects on which the temptation to utter abstract interpretive generalizations is greater or on which they are more to be distrusted. The little clause is packed with controversy and difficulty." (9)

This Article seeks to place the Treason Clause at the heart of our thinking about the constitutional issues raised by the "war on terror," with particular emphasis on the "enemy combatant" issue. Under the constitutional law of treason, any person who is potentially subject to an American treason prosecution must be tried in a civilian court and may not be detained by the military as an enemy combatant or subjected to military tribunals.

This rule is all but forgotten today, but was once familiar to any informed lawyer in the Anglo-American world. From at least the seventeenth through the nineteenth centuries, English and American treatise writers, public officials, and courts consistently distinguished between persons subject to the law of treason and persons subject to military authority. (10) Those persons subject to the law of treason were entitled to trial under the ordinary processes of the criminal courts; by contrast, those persons not subject to the law of treason could be treated as enemies and subjected to military authority. The line was explicitly drawn on the basis of allegiance: those persons who owed allegiance were subject to trial for treason; those who did not were subject to military authority. Significantly, Anglo-American law has never held that allegiance is simply a question of citizenship. Indeed, under American law, allegiance is owed to the United States by any person present within its borders other than those persons accompanying an invading military force. Because of the broad sweep of the doctrine of allegiance, most suspected terrorists apprehended within the United States, regardless of citizenship status, owe allegiance to the United States and may commit treason against it. It follows that such individuals cannot constitutionally be subject to military authority as enemy combatants.

This key distinction between civil and military authority, which lay at the heart of Anglo-American treason law, regrettably did not survive World War II. In Ex parte Quirin, the Supreme Court approved the trial and execution by military authorities of a man who claimed American citizenship, who had aided Nazi Germany, and who was captured in the United States. (11) This precedent is flatly inconsistent with the Treason Clause, which prohibits the government from subjecting to military authority an individual otherwise subject to prosecution for treason. The Supreme Court affirmed this unfortunate error in Hamdi v. Rumsfeld, in which the Court considered the case of an American citizen captured while allegedly fighting for Taliban troops in Afghanistan and subsequently detained in the United States under military authority as an "enemy combatant." (12) Although the Court quite properly rejected the government's extreme position that it could hold Mr. Hamdi indefinitely, without access to a lawyer, and without an opportunity to contest the factual basis for his detention, (13) it repeated the Quirin error by holding that Hamdi was nonetheless subject to military authority. (14) Only Justices Scalia and Stevens correctly recognized that, absent the suspension of habeas corpus, Hamdi was entitled to trial by an Article III court, with all of its corresponding procedural protections. (15)

This Article can be seen as an extended historical concurrence to Justice Scalia's opinion in Hamdi, one which fleshes out the full dimensions of the forgotten constitutional law of treason. This law, in fact, provides significantly more protection to individuals than Justice Scalia recognizes. (16) I begin in Part I with a brief historical background to the Constitution's Treason Clause, setting it in the broader context of Anglo-American legal history. In Part II, I examine the related questions of allegiance and jurisdiction that lie at the heart of the Treason Clause's limitation of military authority. I conclude that, until the Quirin error, treason law consistently distinguished between those...