Treason in the age of terrorism: an explanation and evaluation of treason's return in democratic states.

• Author: Eichensehr, Kristen E.

ABSTRACT

Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War II. Now it is making a comeback with prosecutions or threatened prosecutions against a new type of enemy--accused terrorists--in the United States, the United Kingdom, and Israel. In the postwar period, commentators wrongly argued that treason would no longer be prosecuted because it is antiliberal, too difficult to prove, unnecessary because modern democracies are stable and secure, and premised on an extinct sense of loyalty to the state. This Article begins by debunking these claims and explaining treason's recent reappearance. First, democratic states have altered their treason laws, without explicit amendment, to make them akin to other criminal laws. Second, technology has made treason both easier to detect and easier to prove. Third, although the states discussed in this Article are generally stable and secure, states are likely to employ treason prosecutions when they perceive an existential threat (even if one does not actually exist). Finally, the betrayal inherent in treason retains both its power to injure and its power to offend, giving treason as much indignant punch as it has ever had. Treason's return is thus explainable, but is it a cause for concern? Treason prosecutions may have several potential benefits including reinforcing societal identity and unity, deterring future treasons, providing retribution against the traitor, and clarifying the procedural system under which terrorism should be addressed. But they may also pose dangers, including unduly aggrandizing the threat from terrorism, signaling weakness of the government that chooses to prosecute treason, biasing the criminal case against the defendant, and posing a difficult question about whether treason necessarily deserves the death penalty. Based on a weighing of these factors, this Article concludes by arguing that treason prosecutions are not cause for concern when they are confined to instances in which--like the U.S., British, and Israeli cases discussed in this Article--the threat posed by the terrorist group the traitor supports is akin to that posed by an enemy state.

TABLE OF CONTENTS I. INTRODUCTION II. TREASON'S DEVELOPMENT AND ITS APPLICATION TO TERRORISM A. Historical Origins of Treason in Common Law Countries B. Treason in the World Wars and Its Subsequent Disappearance C. Current Treason Cases and Potential Cases III. DEBUNKING THE REASONS FOR TREASON'S ALLEGED DISAPPEARANCE A. Antiliberal B. Too Difficult To Prove C. Stability and Security D. Loyalty IV. THE POTENTIAL EFFECTS OF TREASON PROSECUTIONS A. Potential Benefits of Treason Prosecutions B. Potential Detriments of Treason Prosecutions C. Reconciling the Balance Sheet V. CONCLUSION I. INTRODUCTION

Treason is both an ancient crime and a popular epithet. (1) The United States and the United Kingdom prosecuted treason until World War II and its immediate aftermath, but they then seemed to take a hiatus. The disappearance of treason as a prosecuted crime led to speculation that liberal democratic states would no longer prosecute treason. Commentators argued that the crime was antiliberal, too difficult to prove, unnecessary in times of stability and security, and based on a sense of loyalty to the state that has become extinct in the modern era. These assumptions are being challenged now, however, by a treason indictment in the United States against an Al Qaeda propagandist (2) and by suggestions that the crime should be charged against various terrorist-related individuals in Britain. (3) Israel, which adopted a treason law after World War II, when the crime was entering a period of disuse elsewhere, is now considering a treason prosecution against an Arab-Israeli member of the Knesset who is accused of aiding Hezbollah during its 2006 war with Israel. (4)

Using the recent cases, this Article first explores the reasons commentators gave for treason's disappearance in the United States and United Kingdom and explains why the reasons and the assumptions on which they were based were erroneous. Part II provides an overview of the historic development of treason law, with particular focus on twentieth-century cases and current treason investigations. Part III debunks four reasons given for treason's supposed demise: that the crime is antiliberal, too difficult to prove, unnecessary for secure and stable states, and premised on an extinct conception of loyalty. First, this Article argues that states have adjusted their treason laws to conform to liberal conceptions of crime and that this has occurred even in the United States where judicial interpretation rather than statutory amendment effected the change. Second, it explains that while treason was designed to be difficult to prove, technology has fostered new and easier ways to prove types of treason and facilitated the acquisition of evidence for all treason prosecutions. Third, it argues that states' willingness and desire to prosecute treason depends not just on the magnitude of the threat posed by an enemy but on the perceived nature of the threat, namely whether the threat is conceived of as existential. The current terrorist threats faced by the United States, the United Kingdom, and Israel are of a magnitude or nature as to create sufficient insecurity to prompt treason prosecutions. Part III concludes by arguing that the betrayal underlying treason retains both its power to injure and its power to offend, making treason as offensive as ever.

Part IV develops a framework for evaluating potential benefits and dangers of treason prosecutions. Potential benefits from treason prosecutions may include reinforcing the societal unity of the prosecuting state by emphasizing the existence and identity of a threatening "other," (5) deterring future treasons, providing satisfying retribution against the traitor, and clarifying the procedural system that should apply to at least some terrorists. These benefits, however, must be weighed against dangers from the prosecutions, including unjustifiably aggrandizing the threat from a terrorist group, signaling weakness on the part of the prosecuting government and state, biasing the adjudication of the charges against the traitor defendant, and presenting a difficult question of whether the death penalty--the historic punishment for treason--is appropriate for treasons that did not result in death.

Applying this framework, this Article concludes that the major concern in evaluating a potential treason prosecution should be whether the terrorist group the traitor supports poses a state-like threat. If the terrorist group poses a state-like threat, then there is little risk of unduly dignifying the group, and the state stands to benefit from the prosecution by the increased social cohesion, deterrence, and retribution it will occasion. The current treason prosecutions are not cause for concern because the terrorist groups they involve do pose state-like threats to the prosecuting countries. The existence of a state-like threat as a precondition to a treason prosecution serves as a principled limit to the expansion of treason beyond the traditional state-against-state war context. Societies must scrupulously guard, however, against expansion of treason to lesser threats--threats by non-state actors in non-war contexts--because such extension could endanger both the liberal and democratic aspects of the prosecuting states.

2. TREASON'S DEVELOPMENT AND ITS APPLICATION TO TERRORISM

   1. Historical Origins of Treason in Common Law Countries

      In 1351, during the reign of Edward III, England enacted the Treason Act, known as 25 Edward III. (6) Originally written in Norman-French, the Act, as translated, reads in relevant part:

      Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not; the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth, that is to say; When a man doth compass or imagine the death of our Lord the King, or of our Lady his Queen or of their eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition:. ... And it is to be understood, that in the cases above rehearsed, that ought to be adjudged treason which extends to our Lord the King, and his royal majesty: and of such treason the forfeiture of the escheats pertaineth to our Sovereign Lord, as well of the lands and tenements holden of ether, as of himself.... (7) The Act was intended to rein in expansive uses of treason. (8) In later centuries, however, debate arose as to whether 25 Edward III presented an exhaustive list of every act that could be considered treason. (9)

      The Tudor monarchs took the view that the treason statute was not exhaustive, and they dramatically expanded treason's scope. (10) For example, King Henry VIII passed a treasonable words statute in 1534, (11) which prohibited, among other things, harming the king by calling him a "Heretick, Schismatic, Tyrant, Infidel or Usurper of the Crown." (12) One commentator notes that the treasonable words statute "remains to this day a candidate for the most unpopular act ever passed by parliament in England." (13) The contours of treason ebbed and flowed with the relative power and weakness of various monarchs, but the same basic law of treason continued after the 1649 death of King Charles I, (14) who was himself executed for treason on the grounds that he had levied war against the "Parliament and Kingdom." (15)

      In the United States, most colonial treason laws were inspired by and drew on 25 Edward III. (16) Eminent treason scholar Willard Hurst (17) notes that legislation similar to or incorporating elements of...