How Many Witnesses Are Required to Convict Someone of Treason
Treason prosecutions have essentially disappeared. Although treason was never a popular charge for federal prosecutors, treason prosecutions attended nearly every armed conflict in American history up to and including the Second World War. Since 1954, however, only one person has been charged with treason against the United States. And that single instance was relatively unusual: in 2006, a federal grand jury indicted Adam Gadahn for treason based on his participation in several al-Qaeda propaganda videos. Gadahn was not in custody at the time of his indictment, and he was later killed in a 2015 drone strike in Pakistan before he could stand trial in the United States.
The traditional explanation for why treason charges have vanished is that the Supreme Court in Cramer v. United States (1945) made treason so difficult to prove that it was no longer a realistic option for federal prosecutors. But that conventional wisdom is wrong. The Court in Cramer did make treason more difficult to prove than it otherwise could have, but it did not raise the bar so high that treason charges were no longer plausible. Indeed, the federal government pursued nearly a dozen treason prosecutions after the Court decided Cramer—and secured convictions in nearly all of those cases. As of 1954, there was little reason to believe that treason charges would fall into complete disuse.
A better explanation for the disappearance of treason prosecutions comes from another aspect of the Cramer decision. The government in Cramer argued that the Treason Clause should be interpreted leniently so that treason charges could be readily deployed during times of war. The Court dismissed the government's concern, observing that "the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security." The Court further emphasized that "the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety." Critically, the Court indicated that federal prosecutors could pursue non-treason charges—offenses such as violating the Espionage Act or the Trading with the Enemy Act—without needing to satisfy the procedural requirements of the Treason Clause.
Another Perspective
This essay is part of a discussion about the Treason Clause with Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. Read the full discussion here.
This understanding was confirmed a few years later during the prosecution of Julius and Ethel Rosenberg for disclosing atomic secrets to the Soviet Union. The Rosenbergs were charged with conspiracy to commit espionage, not treason. But prosecutors and even the trial judge often conflated the charges, referring to the Rosenbergs as "traitors" and having committed "treason." The Rosenbergs claimed that their convictions had violated the Treason Clause, because they were effectively convicted of treason but without the attendant constitutional safeguards. The United States Court of Appeals for the Second Circuit rejected the Rosenbergs' argument in 1952, and the Supreme Court declined to intervene the following year.
By 1954, therefore, Rosenberg and Cramer had firmly established that prosecutors could bring non-treason charges without the procedural safeguards provided by the Treason Clause, even if the conduct at issue could plausibly be considered treasonous. At the same time, Congress passed several new national security laws, including the Internal Security Act of 1950 and the Communist Control Act of 1954. As the menu of federal crimes expanded, prosecutors had less and less reason to resort to treason charges. Why bother with the two-witness rule or the overt-act requirement when a variety of alternative (and substitute) offenses exist?
Because treason prosecutions have effectively disappeared, one might wonder about the continued relevance of the Treason Clause. But the Clause should not be relegated to the dustbin of history for at least two reasons. First and foremost, as the indictment against Adam Gadahn demonstrated, treason is not yet completely extinct. And because the Court in Cramer did not in fact make treason impossible to prove, there remains the possibility that treason charges could one day increase in relative frequency. If that does happen, the Treason Clause sets forth important requirements on how such charges must be proven.
Second, while the specific protections set forth in the Treason Clause may be limited to treason prosecutions, the principles underlying the Clause are not. Indeed, they should serve as important reminders about national security cases more generally. The Framers correctly believed there was a crucial distinction between traitorous actions and treasonous thought. Departing from English common law, which at the time recognized constructive treason, the Constitution required some sort of action before a person could be convicted of treason. That line between conduct and conscience dovetails with First Amendment values, and is one that should be respected beyond the narrow confines of treason. In addition, the Framers recognized that national security offenses are more likely to inflame public passions, and therefore deserve heightened procedural protections. This insight also extends beyond treason cases, and is one Congress, federal courts, and the public would do well to remember.
How Many Witnesses Are Required to Convict Someone of Treason
Source: https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/39