Understanding Treason in U.S. Law
Date of Information: 09/16/2025
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What Is Treason?
Most people think of “treason” as simply betraying your country. Merriam-Webster defines it as:
“The offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family.”
“The betrayal of a trust: TREACHERY.”
But these dictionary definitions are too vague for law. English monarchs historically abused treason charges to silence dissent. The Founding Fathers, determined to prevent such abuse, made treason the only crime defined in the U.S. Constitution:
“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.””
Historical Roots of Treason Law
Medieval England
Magna Carta (1215): Limited royal power, but treason still carried forfeiture of property and execution by drawing and quartering.
Treason Act of 1351: Codified treason as levying war against the king, aiding enemies, or plotting the monarch’s death. This statute influenced U.S. law.
Tudor and Stuart Eras
Henry VIII’s Treasons Act (1534): Made it treason to deny his supremacy over the Church of England or question Anne Boleyn’s legitimacy.
The Star Chamber: Became infamous for persecuting political opponents under broad treason laws.
Result: Treason charges became a political weapon. The framers of the U.S. Constitution reacted against this abuse.
The American Founding
James Madison wrote in Federalist No. 43 that “new-fangled and artificial treasons” had been tools of factional oppression. The Constitution’s definition was made narrow and precise, with strict safeguards like the two-witness rule and the ban on corruption of blood (punishing a traitor’s family).
Treason in Early America
Whiskey Rebellion (1794): Insurgents resisted federal excise taxes. The Supreme Court recognized such armed resistance as treason (United States v. Vigol, 2 U.S. (2 Dall.) 346 (C.C. Pa. 1795)), though Washington pardoned those convicted.
Aaron Burr (1807): Tried for conspiring to form a breakaway republic. Chief Justice Marshall held that mere conspiracy did not equal levying war; Burr was acquitted (Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)).
Rhode Island’s Dorr Rebellion (1844): A coup attempt led to conviction for conspiracy, not treason — but forced democratic reform.
John Brown (1859): Executed for treason against Virginia after the Harper’s Ferry raid. His trial highlighted the line between state and federal treason.
Civil War and Reconstruction
Constructive Treason: Lincoln’s Attorney General authorized “political arrests” of insurrectionists without trial.
Military Commissions: About 106 were charged with treason by military tribunals, including the Lincoln assassination conspirators.
The Fourteenth Amendment: Disqualified Confederates from office instead of mass prosecutions.
Supreme Court View: Confederates were not a legitimate de facto government; adherents remained traitors (Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1868)).
Treason in the 20th Century
In modern times, treason is criminalized and defined by 18 U.S.C. § 2381 in addition to the U.S. Constitution.
World War II Propagandists: U.S. citizens who broadcast Nazi or Japanese propaganda were convicted of treason, including “Axis Sally” (Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950)) and others (Chandler v. United States, 171 F.2d 921 (1st Cir. 1948)).
Tomoya Kawakita (1952): Convicted for abusing American POWs while working in Japan (Kawakita v. United States, 343 U.S. 717 (1952)).
Last Treason Conviction: Kawakita remains the most recent. Since then, prosecutors have turned to terrorism and conspiracy statutes.
Doctrinal Elements of Treason
1. Allegiance
Treason is breach of allegiance, owed permanently by citizens and temporarily by resident aliens (Carlisle v. United States, 83 U.S. (16 Wall.) 147 (1872)).
2. Levying War
Requires an assembly of persons for a treasonable purpose; conspiracy alone is insufficient (Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)).
Armed resistance to enforcement of a federal law qualifies (United States v. Fries, 3 U.S. (3 Dall.) 515 (C.C. Pa. 1799)).
Purely private disputes or minor local uprisings do not (United States v. Hoxie, 26 F. Cas. 397 (C.C. Vt. 1808)).
3. Adhering to Enemies / Aid and Comfort
Defined as acts that strengthen the enemy or weaken the U.S. (Kawakita, 343 U.S. 717).
Requires intent: disloyal thoughts alone are insufficient (Cramer v. United States, 325 U.S. 1 (1945)).
Examples include:
Delivering prisoners (United States v. Hodges, 26 F. Cas. 332 (C.C. Md. 1815)).
Supplying hostile forces (Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1870)).
Propaganda broadcasts (Gillars, 182 F.2d 962; Chandler v. United States, 171 F.2d 921 (1st Cir. 1948)).
4. Procedural Safeguards
Overt Act: Must show actual aid or comfort (Haupt v. United States, 330 U.S. 631 (1947)).
Two-Witness Rule: Two witnesses must testify to the same overt act — a unique safeguard against political abuse.
Punishment of Treason
No corruption of blood: Heirs cannot be punished for a traitor’s crime (Wallach v. Van Riswick, 92 U.S. 202 (1875)).
Forfeiture limited to life: Congress cannot prescribe forfeiture beyond the traitor’s lifetime (Bigelow v. Forrest, 76 U.S. (9 Wall.) 339 (1869)).
Civil forfeitures in rem (like drug law seizures) do not violate the constitutional ban (United States v. Distillery on West Front Street, 25 F. Cas. 866 (C.C.D. Del. 1870)).
Why Treason Is Rarely Charged Today
High Proof Requirements: Overt act + two witnesses.
Intent Element: Disloyalty must be paired with intent to betray.
DOJ Risk Aversion: Prosecutors avoid treason because of its hurdles and symbolic stakes as the ultimate crime.
Modern Substitutes: Terrorism statutes (18 U.S.C. §§ 2339A–D), seditious conspiracy, rebellion/insurrection, and material support charges.
Conclusion
Treason is the only crime defined in the Constitution. Its narrow scope protects liberty but makes prosecutions extremely rare. From medieval abuses to the Civil War and World War II, to today’s terrorism cases, treason has always carried enormous symbolic weight but little practical application.
In modern America, acts that might once have been treason are charged under terrorism, conspiracy, or material support statutes. Understanding treason’s history and doctrine is essential to appreciating both the limits of government power and the continuing threats to constitutional order.
Need Help with a National Security Case?
If you or your loved ones face accusations tied to treason, terrorism, or political violence, you need counsel who understands both the law and the national security landscape. At Charles International Law, we combine courtroom experience with deep knowledge of counterterrorism and constitutional law. Schedule a consultation today to protect your rights and your future.
Frequently Asked Questions About Treason
1. What is the legal definition of treason in the United States?
Treason is the only crime defined in the U.S. Constitution. It consists only of either (1) levying war against the United States, or (2) adhering to their enemies by giving them aid and comfort. Conviction requires either a confession in open court or testimony from two witnesses to the same overt act.
2. How is treason different from sedition or insurrection?
Treason requires levying war or aiding an enemy during wartime.
Sedition generally refers to inciting rebellion or violence against lawful authority.
Insurrection involves actual violent resistance to U.S. authority but may fall short of treason.
Many modern cases are prosecuted under sedition, conspiracy, or terrorism statutes rather than treason.
3. Has anyone been convicted of treason in U.S. history?
Yes. Famous examples include convictions during the Whiskey Rebellion in the 1790s, John Brown’s execution for treason against Virginia in 1859, and propaganda broadcasters for Nazi Germany and Imperial Japan during World War II. The last treason conviction was Tomoya Kawakita in 1952 for abusing American prisoners of war in Japan.
4. Why is treason so rarely charged today?
The evidentiary hurdles are high — prosecutors must prove an overt act with two witnesses and show intent to betray. Because of these challenges, the Department of Justice usually charges terrorism, seditious conspiracy, or material support to terrorism instead.
5. Can treason be committed outside the United States?
Yes. U.S. citizens can commit treason abroad, such as by aiding enemies while overseas. Courts have upheld treason convictions for conduct committed in Germany and Japan during World War II.
6. Does criticizing the government count as treason?
No. The First Amendment protects free speech, even harsh criticism of government policies. Treason requires overt acts that actually aid enemies or levy war against the United States. Mere words, without integration into enemy propaganda efforts, are not enough.
7. What is the punishment for treason?
Under federal law (18 U.S.C. § 2381), treason is punishable by death or a minimum of five years in prison and a fine of at least $10,000. However, the Constitution forbids “corruption of blood” — meaning a traitor’s family cannot be punished — and limits forfeiture of property to the traitor’s lifetime.
8. How does treason relate to modern terrorism laws?
Most conduct that could be seen as treasonous is now prosecuted under terrorism laws, such as material support to terrorism (18 U.S.C. § 2339B), use of weapons of mass destruction, or seditious conspiracy. These statutes are easier to prove and better tailored to modern threats.
Other Helpful Resources:
See Also:
CIL Guide to Sanctions and Export Controls
CIL Guide to Economic Sanctions Within a Broader National Security Strategy
CIL Guide to Executive Power Over Foreign Relations and National Security
