Aid and Comfort to the Enemy as Treason

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Article III, Section 3, Clause 1:

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.

Since Ex Parte Bollman, the few treason cases that have reached the Supreme Court arose in the context of World War II and involved defendants charged with adhering to enemies of the United States and giving them aid and comfort. In the first of these cases, Cramer v. United States,1 the Court considered whether the “overt act” at issue must itself manifest a treacherous intention or if it was enough that other proper evidence support such an intention.2 The Court, in a 5-4 opinion by Justice Robert Jackson, in effect took the former view, holding that the Treason Clause’s “two-witness principle” prohibited “imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,” 3 even though the single witness in question was the accused himself. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,” 4 Justice Jackson asserted. Justice William Douglas in a dissent, joined by Chief Justice Harlan Stone and Justices Hugo Black and Stanley Reed, contended that Cramer’s treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements Cramer made on the witness stand.

In the second case, Haupt v. United States,5 the Supreme Court sustained a treason conviction for the first time in its history. Although the overt acts that supported the treason charge—including defendant’s harboring and sheltering of his son who was an enemy spy and saboteur, and assisting his son in purchasing an automobile and obtaining employment in a defense plant—were all acts that a father might naturally perform for a son, the Court held that this fact did not necessarily relieve such acts of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: “No matter whether young Haupt’s mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him.” 6 These acts, Justice Jackson continued, “were more than casually useful; they were aids in steps essential to his design for treason.” 7 Thus, “[i]f proof be added that the defendant knew of his son’s instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear.” 8 The Court further held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court if such evidence is merely corroborative and where a legal basis for the conviction has been laid by the testimony of two witnesses.

This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas, who saw in Haupt a vindication of his position in Cramer. In Justice Douglas’s view, Cramer was wrongly decided because it departed from the rules that “the overt act and the intent with which it is done are separate and distinct elements of the crime” 9 and that “[i]ntent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act.” 10 In Justice Douglas’s view, “proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.” 11 He further opined that the Haupt decision was “truer to the constitutional definition of treason” by holding that “an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one.” 12

In a third case, Kawakita v. United States,13 the Supreme Court sustained a treason conviction against a defense that the defendant, a dual citizen of Japan and United States, had renounced his American citizenship. In that case, the defendant, who was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law, served during the war as a civilian interpreter of a private corporation producing war materials for Japan and was accused of brutally abusing American prisoners of war who were forced to work for the corporation. Upon his return to the United States following Japan’s surrender, the defendant was charged with treason for his conduct toward American prisoners of war. In affirming the conviction, the Court concluded that the question regarding whether the defendant had intended to renounce American citizenship was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, the Court continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.14

The vacillation of Chief Justice John Marshall between the Bollman15 and Burr16 cases and the vacillation of the Court in the Cramer17 and Haupt18 cases leave the law of treason in a somewhat uncertain condition. The difficulties created by Burr, however, have been largely obviated by punishing acts ordinarily treasonable in nature under a different label,19 within a formula provided by Chief Justice Marshall himself in Bollman. There, Chief Justice Marshall opined that “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason.” 20 In his view, “[t]he wisdom of the legislature is competent to provide for the case,” 21 and Framers must have intended this legislative approach in the punishment of such cases because such general laws would be “formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate.” 22

1: 325 U.S. 1 (1945).
2: Id.
3: Id. at 35.
4: Id. at 34–35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: “adherence to the enemy; and rendering him aid and comfort.” Id. at 29. A citizen, it was said, may take actions “which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” Id.
5: 330 U.S. 631 (1947).
6: Id. at 635.
7: Id.
8: Id. at 635–36.
9: Id. at 645.
10: Id.
11: Id.
12: Id. at 645–46. Justice William Douglas cites no cases for these propositions. Justice Frank Murphy in a solitary dissent stated: “But the act of providing shelter was of the type that might naturally arise out of petitioner’s relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non- treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be.” Id. at 649.
13: 343 U.S. 717 (1952).
14: 343 U.S. at 732. For citations in the subject of dual nationality, see id. at 723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. Id. at 746 ( “As a matter of law, he expatriated himself as well as that can be done.” ).
15: Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
16: United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).
17: Cramer v. United States, 325 U.S. 1 (1945).
18: Haupt v. United States, 330 U.S. 631 (1947).
19: Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir. 1952), cert denied, 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.
20: Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807).
21: Id.
22: Id. at 127. Justice Felix Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list taken from the government’s brief of all the cases prior to Cramer in which the Treason Clause was construed.