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We Have Met the Enemy, and He Is…?

Apparently, my post on treason from yesterday was too short–and it has generated lots of skeptical commentary, especially in response to Kate’s tweet, below, from folks who think it’s self-evident that we’re “at war” with Russia, and that, even if we’re not, they’re clearly our “enemy” for purposes of the treason statute, 18 U.S.C. § 2381.

Not to put too fine a point on it, but, again, this is just wrong. There is no international armed conflict between the United States and Russia, nor has Congress done anything to recognize one, so “war” is out. The “enemies” question is a bit harder, because the treason statute does not specifically define the term “enemies,” and because that term is often bandied about to describe lots of groups whose interests are at least nominally adverse to the United States.

But a statute enacted not long after the treason statute–the Alien Enemy Act of 1798–is much more specific about who alien “enemies” are, referring to “all natives, citizens, denizens, or subjects” of a country against which the United States has “declared war.” This is an extremely narrow definition (we haven’t declared war since 1942), and does not even cover the opposing side in un-declared wars, such as Vietnam, the conflict against al Qaeda and its affiliates, and so on. But even assuming, for the sake of argument, that the treason statute is broader than the Alien Enemy Act, and that opposing forces under more limited use-of-force authorizations are indeed “enemies” for purposes of the treason statute (there are vanishingly few examples of such prosecutions), it still requires, at a minimum, the existence of an armed conflict under both domestic and international law–something noticeably lacking with regard to the United States and Russia. Consider United States v. McWilliams, a treason prosecution from World War II. In McWilliams, the D.C. district court rejected those aspects of a treason charge that arose from conduct the defendant engaged in on behalf of Nazi Germany between 1933 and 1940 because “an essential element therein is aid and comfort to ‘enemies’ and Germany did not become a statutory enemy until December 1941.” Indeed, even at the height of the Cold War, it was not treason to commit espionage on behalf of the Soviet Union, because we weren’t actually “at war” with Russia.

It may seem strange to adopt such a narrow definition of “enemies” for purposes of the treason statute, but there are longstanding and really important reasons carefully to cabin the scope of the statute. As the Seventh Circuit explained in 1986, “[t]he reason for the restrictive definition is apparent from the historical backdrop of the treason clause. The framers of the Constitution were reluctant to facilitate such prosecutions because they were well aware of abuses, and they themselves were traitors in the eyes of England.”

There are other, less serious, statutes that Americans might violate through their collusion with foreign powers, friend or foe. But we would do well to save “treason,” both legally and colloquially, for the rare but critically important cases in which it actually occurs.

About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).