Treason Cases and Doctrine, 1945-1970
AFTER THE Supreme Court
decided Cramer v. United States, World War II produced ten more
reported treason prosecutions pressed to conviction. In seven of these cases
court opinions dealt with substantive and procedural doctrine concerning the
elements of treason and the manner of proving it. Three of the seven cases —
Haupt v. United States, decided by the Supreme Court in 1947,
Chandler v. United States, decided by the First Circuit Court of Appeals in
1948, and Kawakita v. United States, decided by the Supreme Court in 1942
— have leading importance for the development of treason doctrine
Defendant Haupt, a
naturalized United States citizen of German origin, was the father of one of the
German saboteurs landed secretly by submarine in this country in June, 1942.
When the son came to Chicago, defendant gave him shelter for several days in the
building in which defendant lived, accompanied him on visits to foremen of a
war-materials plant so that the son might seek employment there in furtherance
of his mission, and accompanied and assisted him in buying an automobile which
the son needed for the activities of his sabotage group; defendant's admissions
to federal agents after his arrest and his statements to fellow prisoners in
jail, established that he knew of and sympathized with his son's sabotage
Defendant Chandler, living
in Europe when Germany went to war with the United States, volunteered his
services to a German government corporation engaged in a continuing program of
wartime radio propaganda, became a salaried member of the corporation's staff,
participated in regular planning sessions in which propaganda directives were
discussed and programs tailored to their demands, and made recordings designed
for use in the enemy's propaganda broadcasts.
Defendant Kawakita was
born in the United States, and was hence (under the 14th Amendment) a citizen of
this country; since his parents were Japanese nationals, he was by Japanese law
also a national of that country. While in Japan as a student, before the
outbreak of war, he renewed an oath of allegiance to the United States before a
United States consul, incident to renewing a passport. After war broke out, he
remained in Japan, caused himself to be registered in an official record of
Japanese nationals, and took employment as a civilian interpreter in a Japanese
private factory producing war materials. While working in this factory, but
acting outside the scope of his assigned duties as civilian interpreter, he
inflicted physical brutalities on United States prisoners of war assigned to
work in the factory and its related mines. These brutalities, the courts found,
were calculated to increase production by the prisoners of war and reduce their
readiness to escape or otherwise refuse to perform labor in the service of the
enemy. Testimony of prisoner witnesses tended to establish defendant's animus
against the United States, and his intent to aid the victory of Japan.
All of these defendants — Haupt, Chandler, and Kawakita —
were ruled to have been guilty of overt acts which aided an enemy of the United
States, with intent to adhere to the enemy's cause. Four of the other treason
prosecutions which resulted in court announcements of doctrine directly related
to treason doctrine, involved the kind of conduct involved in Chandler v.
United States — participation in enemy wartime radio propaganda programs
— and followed the doctrine laid down in that case.
(a) General Policy
Official opinions in
treason cases after Cramer consistently continue the familiar emphasis on
the restrictive policy of the Constitution toward the scope of the crime. In
none of the ten reported decisions dealing directly with treason doctrine was
there application of this restrictive emphasis to weight choice in favor of a
narrower rather than a broader definition of elements of the offense; nine
decisions found treason by adhering to the enemy, giving him aid or comfort; in
one case tried before a military commission, the conviction was overturned on
appeal within the military justice system for defects in the evidence of overt
acts. The pattern of decision casts no doubt on the vitality of the restrictive
policy, for all of these World War II cases fell within a conservative concept
of the offense.
True, Haupt defined the crime in terms less
difficult for the prosecutor than Cramer. But, as I note later, in doing
so Haupt only corrected what seems error in Cramer, without
diminishing the proper force of the limiting admonition of the Constitution.
In a number of cases not
involving prosecution for treason, judges took note of the restrictive policy of
the Constitution toward that crime by the care they took, or the arguments they
made, to differentiate it from other offenses against national security. These
instances were of two types, one promoting the broad scope of legislative and
executive power to define and implement other security offenses, the other
drawing on the limiting policy toward treason to narrow certain assertions of
There was acknowledgment
that the treason clause of the Constitution set the exclusive definitions of
treason; Congress might not vary the elements of treason or escape the
substantive constitutional definition or the requirement of two witnesses to the
same overt act by attaching a different label to levying war or adhering to an
Somewhat analogous was a policy declared by Congress to
limit military trials. The Uniform Code of Military Justice declared that one
might be brought to court martial for conduct engaged in before his discharge
from military service only if the accused was not subject to trial therefor in a
civil court. Hence, it was held that where the individual's acts constituted
adhering to and aiding the enemy, the availability of the treason charge
precluded trial before a military tribunal.
On the other hand, in two
important prosecutions under the Federal Espionage Act, the Second Circuit Court
of Appeals fulfilled previous declarations of the law by ruling that the treason
clause did not bar Congress from creating an offense against national security
with elements materially different from treason. The applicable statute provided
penalties for "whoever, with intent or reason to believe that it is to be used
to the injury of the United States or to the advantage of a foreign nation"
communicates or delivers to any foreign government or its agents information
relating to the national defense.
United States v. Rosenberg presented charges
of conspiracy to violate this statute by communicating protected information to
the USSR between 1944 and 1950. The Court of Appeals held (1952) that the
treason clause did not bar creation of this offense, because "in the Rosenbergs'
case, an essential element of treason, giving aid to an 'enemy' is irrelevant to
the espionage offense."
United States v. Drummond presented a charge
of conspiracy to violate the same statute by a serviceman in the United States
Navy who between 1957 and 1962 delivered classified military materials to USSR
agents. Again the Court of Appeals held that the treason clause did not bar
creation of the espionage offense. The court seemed to go out of its way to
enlarge the distinctions between the crimes, finding it "unnecessary" to invoke
the difference relied on in Rosenberg, because it found differences in
the required mental element. Now it pointed out (1965) that the espionage act
required a showing only (a) that the defendant transmitted information with
intent "or reason to believe" that it would be used to a forbidden result, and
(b) with intent or reason to believe that it would be used either "to the injury
of the United States or to the advantage of a foreign nation." In contrast, the
court implied, treason requires a specific intent, and a specific intent both to
aid the enemy and to injure the United States.
The two decisions are consistent with the historic scope of the constitutional
definition of treason, and with doctrine announced in Cramer.
The concerns over possible
abuse of government power which lay back of the restrictive constitutional
policy on treason had analogies — with varying results — in the development of
other areas of public policy. No clear over-all pattern emerged, but the balance
inclined toward borrowing the cautions on treason to limit application of other
legal sanctions against alleged disloyalty.
In two decisions, the
Court of Appeals for the District of Columbia ruled that the Administrator of
Veterans Affairs had improperly terminated veterans' disability benefits under a
federal statute which authorized such action concerning a beneficiary whom the
Administrator found "guilty of mutiny, treason, sabotage, or rendering
assistance to any enemy of the United States." In Wellman v. Whittier
(1958) the court found that the Administrator grounded his action upon the
beneficiary's membership in the Communist Party as established by his conviction
under the Smith Act for conspiracy to advocate overthrow of the government by
force. The court ruled that an overt act of assistance to an enemy of the United
States must be shown, since the statute showed the intention of Congress to
analogize that category of its terms to the requirements of proving treason;
mere membership in the party was thus not within Congress's intent under the
In Thompson v. Gleason the Administrator based
forfeiture of disability benefits on findings that the beneficiary had published
pamphlets and made speeches sharply critical of the United States military
involvement in Korea. The majority of a three-judge district court thought that
the Administrator acted within the statute, for — citing treason cases — "It is
well settled that aid and assistance to the enemy may be extended in the form of
verbal utterance alone, as was the case in this instance." Circuit Judge Fahy
(who as Solicitor General had presented the government's case in Cramer
before the Supreme Court) dissented strongly; it was not claimed that the
Administrator had found acts of treason here, and in the context of the
statute's reference to treason, it should not be interpreted to penalize
domestic political opposition.
Reversing the district court, the Court of Appeals (1962)
ruled that to avoid a serious question under the First Amendment the statute
should be construed to require a finding that the beneficiary had committed a
crime in aiding the enemy, and since the record did not show a crime, the
benefits must be reinstated. The Court of Appeals did not mention treason, but
in the whole context of the case its opinion in substance agrees with Fahy's
Several cases growing out
of World War II presented an issue analogous to that of adherence and aid to an
enemy, where petitioners of dual nationality (citizens of the United States by
place of birth, and of the enemy nation by birth to nationals of that country)
sought declarations that their service in the enemy's army in wartime under
conscription was not an act of expatriation. In Knauer v. United
States (1946) — with concern made manifest by its own reexamination of the
full record — the Supreme Court sustained revocation of a decree of
naturalization because it had been obtained by fraud; the record, the Court
found, clearly sustained the finding that when petitioner foreswore allegiance
to the German Reich he swore falsely. Rutledge, J., dissented, joined by Murphy,
J. A native-born person, Rutledge argued, might lose his citizenship only for
conviction of treason or other felony, with all the safeguards surrounding a
determination that the requisite offense had been committed (after, for example,
a "rigidly safeguarded trial for treason"); nothing in the Constitution or our
traditions, he felt, warranted subjecting a naturalized person to any greater
range of hazard of losing citizenship.
Knauer might seem to forecast stiff handling of the
later expatriation cases. But to the contrary the decisions gave full benefit of
the doubt to those native-born citizens who, having been lawfully present in
enemy countries at the outbreak of war, found themselves conscripted into enemy
military service on the basis of their dual nationality. In Nishikawa v.
Duties (1958) the Supreme Court held that — contrary to the ordinary rule
that duress is a matter of affirmative defense — the government had the burden
of proving by clear, convincing and unequivocal evidence that an apparent act of
expatriation was voluntary; unless voluntariness were put in issue, it would be
assumed, but when petitioner showed that he was inducted under a conscription
law of the country of his dual nationality, and claimed that the induction was
against his will, the government must sustain its burden of proof.
The strong preponderance of lower federal court decisions
before Nishikawa had already in effect come to the same result. Most of
these decisions did not explicitly invoke the treason clause or cases, though at
least one court intimated that the availability of the treason charge was a
further reason why an expansive interpretation should not be given to the
statutory provisions for expatriation.
The prevailing emphasis of the cases was, rather, on the
uniquely basic status which citizenship is, and on the doctrine established in
statute and apparently of constitutional force, that no conduct may result in
expatriation unless it be voluntary.
However, where individuals served in enemy armies, the courts' insistence on
clear proof of intent inconsistent with loyalty to the United States constituted
a value judgment which in effect belongs with the restrictive traditions of the
treason clause. In 1961 Congress highlighted the presence of a significant value
choice by amending the Nationality Act to reverse the Nishikawa
allocation of the burden of proof on duress, putting it on the citizenship
The Supreme Court drew on
the restrictive policy toward treason to support the rule that wrongful intent
should be presumed intended as an element in federal crimes,
and more specifically to support its ruling that under the Smith Act the United
States must prove specific intent to advocate overthrowing the government by
On the other hand, dissenting Justices were conspicuously
unsuccessful in persuading the Court that since treason requires proof of an
overt act, in order to forestall using the treason charge against unpopular
speech or publication in the course of domestic political controversy, so laws
directed at subversive activity other than treason should be interpreted to
require proof of overt acts other than the communicating of ideas or opinions.
The march of events raised
a new point relevant to general limitations on the treason offense. In earlier
doctrine there was an assumption, more often implied than stated, that treason
by adhering to and aiding an "enemy" could be committed only during a formally
declared state of war.
By mid-20th century the country found itself in shooting wars which Congress had
not formally declared. In two matters connected with the undeclared Korean war,
where treason charges were not directly in issue but policy concerning the scope
of treason figured in the handling of the matters at issue, some judges
apparently assumed that a foreign power which was shooting at United States
forces was an "enemy" within the meaning of the treason clause despite absence
of a declaration of war.
There is realism in this position. But there were also
enough possibilities of uncertain definition in it to run counter to the
traditional restrictive policy of the Constitution.
(b) The Intent
decisions reaffirmed familiar doctrine on the nature of the wrongful intent
which is an element of treason by adhering and giving aid to the enemy. Intent
is a distinct element of the crime, in addition to the required showing of an
The requisite intent is one to benefit the enemy's war
effort and to harm that of the United States.
Duress amounting to immediate threat of death or serious bodily harm is a
recognized defense which would negative the required wrongful intent; in the
setting of two defendants' detailed, long-continued involvement in conducting
enemy wartime radio propaganda programs the courts had no difficulty in
supporting jury verdicts which found that the defense was not proved.
The World War II cases
added to previous doctrine on intent by responding to three kinds of claims that
defendants had been of a divided state of mind — out of dual purposes, loyal
motive, or dual allegiance. The Supreme Court in Haupt held proper a jury
instruction that the defendant lacked treasonable intent if his intention "was
not to injure the United States, but merely to aid his son as an individual, as
distinguished from assisting him in his purposes, if such existed, of aiding the
German Reich, or of injuring the United States." In ruling that the evidence
supported the jury's verdict of conviction, in the context of the instruction it
approved, the Court apparently holds that if defendant intended to aid the enemy
he acted with the requisite wrongful intent, though he may also have acted to
implement a father's concern; a mixture of purposes will not negative the crime,
if the mixture includes an intent to betray.
Defendants Chandler and Best presented a related, but
distinct, point when they argued that they lacked treasonable intent because,
though they intended their propaganda broadcasts to help Germany win and the
United States to lose the war, they acted so out of conviction that defeat would
serve the best long-term interests of the United States by halting the march of
a Jewish Communist conspiracy for world domination. The argument in effect would
excuse purpose (an immediate intended objective result of conduct) by motive (an
intended more remote result, or at least a different intended result valued for
its service to different interests). In both cases the First Circuit Court of
Appeals held that motive was irrelevant, if there were an immediate purpose to
aid the enemy.
Finally, the World War II cases presented what in effect
were issues of intent, created in the first instance by problems of defining the
legal nature of allegiance where individuals lawfully were present in the
foreign country at war's outbreak, especially when they were of dual nationality
— citizens of the United States because they were born here, and citizens of the
foreign country of which their parents were then nationals. Any person owes
temporary allegiance to the ordinary domestic laws of a foreign sovereign whose
protection he enjoys in that sovereign's territory.
In addition, a United States citizen, lawfully present at the outbreak of war in
a foreign country of which by dual nationality he is also a citizen, owes that
country the ordinary duties of citizenship apart from direct war service.
Given the need to earn a living, and given the broad scope
of controls characteristic of a modern war economy, individuals whom the
outbreak of war found in the hostile country would not be held to have
treasonable intent merely because they took employment there, though the
employment made some contribution to the enemy's strength.
So, as we have already seen, conscripted service in the
enemy army will be taken to reflect duress and not a voluntary change of
But the radio-broadcast defendants committed themselves to special-skills
activities not of an ordinary employment nature, focused upon specialized aid to
the enemy. Defendant Kawakita took what might be rated as ordinary employment —
as civilian interpreter dealing with prisoners of war assigned to work in a mine
and metals processing factory producing materials useful to the war effort — but
exerted himself in physical abuse of prisoners beyond his job assignment. All of
these defendants were shown to have repeatedly declared their animus against the
United States war effort and their desire that the enemy prevail. In these
contexts the courts had no difficulty in ruling that claims of allegiance owed
by presence or of allegiance owed also by dual nationality did not negative the
existence of intent to betray the United States.
That Congress by statute allowed United States citizens
voluntarily to expatriate themselves — thereby ending the allegiance which could
open them to conviction of treason — did not set up an unconstitutionally
arbitrary classification as against those who kept their United States
citizenship; differentiation of legal responsibility according to allegiance was
a reasonable classification for a national state to make.
(c) The Overt Act
The decisions after
Cramer materially clarified or added to the law concerning the overt act in
treason in three respects — the relation between the intent and act elements of
the crime, the required causal tendency or likely effect of the act, and the
bearing of the act element on values of protected speech and dissent.
Mr. Justice Jackson's
opinion for the Court in Cramer left badly confused the relation between
the intent and act elements of treason. The opinion stated clearly that these
were distinct elements, and at one point disclaimed holding that to be a
sufficient overt act the act must be of such character as itself to evidence
intent to betray. But in ruling insufficient the two-witness testimony there
offered, of defendant's two meetings with an enemy saboteur in public
restaurants, Jackson's opinion seemed nonetheless to reject the evidence because
in itself it implied nothing of evil purpose: If the government's argument was
that it might meet its burden of proof by showing "an apparently commonplace and
insignificant act and from other circumstances create an inference that the act
was a step in treason and was done with treasonable intent.... [then] the
function of the overt act in a treason prosecution is almost zero."
Along with this ambiguous talk, the Cramer opinion
said that its ground was that the acts proved constituted "no showing that
Cramer gave [the saboteurs] ... any information whatever of value to their
mission ... furnished them no shelter, nothing that can be called sustenance or
supplies," so that "without the use of some imagination it is difficult to
perceive any advantage which this meeting afforded to [the saboteurs] ... as
Again speaking for the Court, in Haupt Mr. Justice
Jackson somewhat clarified the matter. Haupt's acts — sheltering his saboteur
son, helping him buy an automobile, and accompanying him in seeking employment
in a war-materials factory — were conduct which a jury could reasonably believe
helped the saboteur in his mission, without need to prove other acts of
defendant. Hence the two-witness testimony to these acts satisfactorily
established overt acts of aiding the enemy. It was immaterial that the conduct
did not on its face evidence wrongful intent.
The Haupt opinion does not foreclose that a given
act might be a legally sufficient overt act, though on its face it was not of
such likely effect as to persuade a jury that aid was given by it, provided that
other evidence could put it in a context that would show that aid was given;
however, Haupt intimates — as Cramer perhaps held — that this
evidence of the act's context must also be supplied by two witnesses to the same
Sufficient acts of aid
were shown where defendants participated in staff conferences and made broadcast
recordings for enemy radio propaganda programs,
and where a defendant committed brutalities on prisoners
of war calculated to extort more production from them and intimidate them from
resisting demands made on them as forced labor in a mine and factory producing
material useful to the enemy war effort.
In all these cases the same two-witness evidence which proved the particular
acts also served to prove the setting in which it was apparent that they were
calculated to give aid. That the aid was not effective, or not substantial, was
Thus it was immaterial how many in the United States heard
a defendant's broadcasts for the enemy, or even whether his recordings were
used; in making the recordings, he fulfilled his assigned role for the enemy.
defendants inevitably raised that aspect of the restrictive policy toward
treason which emphasized protection of rights of speech and political dissent.
The courts had no difficulty in rejecting the defense. True, sound policy
opposed using treason charges to suppress ordinary domestic political
controversy. And mere speech, however disloyal in intent, would not make out an
overt act if in its setting it would not give aid.
But expression was an act, and where it was part of a
planned enemy propaganda campaign it amounted to a sufficient overt act.
Moreover, the First Circuit Court of Appeals indicated, there could here be no
substantial question of protecting the freedom of political dissent, for this
behavior was outside the framework of domestic political combat: "Trafficking
with the enemy, in whatever form, is wholly outside the shelter of the First
(d) Sufficiency of
The decisions after
Cramer elaborated the law concerning the sufficiency of evidence of
treasonable intent, without major addition. Intent need not be proved by two
witnesses, nor by the character of the overt acts proved by two witnesses.
On the other hand, intent might be inferred from the overt
So, intent to betray might be inferred from the content of
recordings made by a United States listening post of defendant's radio
broadcasts for the enemy, where the trial court carefully charged the jury that
the evidence used for this purpose was not to be taken as a substitute for the
required two-witness testimony to overt acts.
Defendants fruitlessly challenged use of their
out-of-court admissions to prove intent. The most pointed defense argument was
that the Constitution should be taken to bar evidence of the defendant's
admissions because Article III, Section 3 stipulated that conviction might not
be had "unless on the testimony of two witnesses to the same overt act, or on
confession in open court." The Supreme Court expressed doubt whether the
Constitution's reference to confession applied to any out-of-court admission of
a fact other than a complete confession of guilt of the crime.
In any event, it ruled such admissions competent where
they corroborated other evidence, such as inferences drawn from properly proved
overt acts, or testimony of third parties as to defendants' statements to them.
The Supreme Court did intimate some doubt whether intent might be sufficiently
proved only by the defendant's admissions.
Defendant's statements contemporary with properly proved
overt acts are proper evidence of intent.
Defendant's statements made long before indictment, should
be admitted with caution lest their use trench on protected domestic political
dissent, but where the statements were "explicit" in showing sympathy for a
country later our enemy, and hostility to the United States, they were held
Problems of proving the
overt act all centered on the two-witness requirement. The courts continued to
declare a standard of strict adherence to the substance of the requirement. Two
witnesses must testify directly to the same overt act; it would not be enough
that there was two-witness evidence of a separate act from which it might be
inferred that the charged act occurred.
Two-witness testimony to defendant's admissions of an act did not meet the
requirement of two-witness evidence to the act itself.
To charge defendant with conspiring with others to commit the act did not
relieve the government of the need to produce two-witness evidence that the
defendant did the act.
However, the decisions
defined with some flexibility favorable to the prosecution the boundaries of the
act to which two witnesses must testify. Their testimony need not be identical
or precise as to all aspects of the cited behavior, nor need it minutely cover
every element into which an episode of behavior might be analyzed. The evidence
was sufficient if it joined in identifying what reasonable jurors could regard
as a connected, patterned transaction. So in Haupt the Supreme Court held
that it was not fatal to the government's case that the two-witness testimony
did not show the saboteur entering defendant's apartment, where it did show that
he entered the building in which defendant had an apartment, and entered only as
defendant's licensee, since by other two-witness testimony it was established
that no other tenant in the building sheltered him.
So, too, defendant's help to the saboteur in buying an
automobile was properly proved by the testimony of the auto salesman and the
showroom sales manager, though the two witnesses did not participate together in
every incident of the transaction, where the sales manager joined in several
steps of it.
Again, in decisions sustaining convictions of defendants
who participated in enemy radio propaganda efforts, the courts indicated that it
met the constitutional standard of proof that two witnesses established a
defendant's continuing cooperation in a connected, planned program; in each of
these cases there was direct two-witness testimony to particular significant
acts, but the courts intimated that they would have accepted testimony of two
witnesses to separate phases of a closely woven net of behavior.
Haupt v. United States, 330 U. S. 631 (1947); Kawakita v. United States,
343 U. S. 717 (1952); Chandler v. United States, 171 F(2d) 921 (C. C. A.
1st. 1948), cert. den., 336 U. S. 918 (1949). See Appendix II for
Gillars v. United States, 182 F. (2d) 962 (Ct. App. D. C. 1950); Best v.
United States, 184 F. (2d) 131, cert. den., 340 U. S. 939 (1951);
Burgman v. United States, 188 F. (2d) 637 (Ct. App. D. C. 1951), cert.
den. 342 U. S. 838 (1951); D'Aquino v. United States, 192 F. (2d) 338
(C. C. A. 9th. 1951), cert. den. 343 U. S. 935 (1952).
See, especially, Magruder, circ. j., for the court, in Chandler v.
United States, 171 F. (2d) 92 1, 938, 939 (C. C. A. 1st. 1948), cert.
den., 336 U. S. 918 (1949).
See Rosenberg v. United States, 195 F. (2d) 583, 610-611 (C. C. A. 2d.
1952), cert. den., 344 U. S. 838 (1952); United States v. Drummond, 354
F. (2d) 132, 152 (C. C. A. 2d. 1965).
Martin v. Young, 134 F. Supp. 204 (N. D. Cal. 1955). For discussion of a
number of cases of alleged assistance to the enemy by United States
servicemen held as North Korean prisoners of war (in an undeclared war:
see note 21, infra), prosecuted or considered for prosecution by
military tribunals as violations of Article 104 of the Uniform Code of
Military Justice, see Comment, 6 Catholic University of America Law
Review 56, 57 (1956), and Steinhaus, "Treason, A Brief History with Some
Modern Applications", 22 Brooklyn Law Review 255, 272-273, note 93
(1956). None of these cases seems to have produced a reported judicial
decision. In some instances the defense unsuccessfully pressed the
argument that in the given contexts the substance of the charge was
treason, and that hence proceedings under the Uniform Code violated the
exclusive policy of the treason clause of the Constitution.
40 Stat. 218, 219 (1917), 62 Stat. 737 (1948), 68 Stat. 1219 (1954), 18
U. S. C. A. sec. 794.
195 F. (2d) 583, 611 (C.C. A. 2d 1952), cert. den., 344 U.S. 838(1952).
354 F. (2d) 132, 152 (C. C. A. 2d. 1965). Cf. Gorin v. United
States, 312 U.S. 19 (1941).
Wellman v. Whittier, 259 F. (2d) 163, 167 and 167, n. 15 (Ct. App. D. C.
Thompson v. Whittier, 185 F. Supp. 306, 314, 315 (dissent) (Dist. Ct. D.
Same case, sub. nom. Thompson v. Gleason, 317 F. (2d) 901 (Ct. App. D.
Knauer v. United States, 328 U. S. 654, 679 (dissent).
Nishikawa v. Dulles, 356 U. S. 129, 134 (1958). See Mandoli v. Acheson,
344 U. S. 133, 135 (1952).
See Terada v. Dulles, 121 F. Supp. 6, 7 (D. Hawaii, 1954); cf.
Nationality Act of 1940, 54 Stat. 1137, 1169 (1940), 8 U. S. C. A. sec.
1481, and Perez v. Brownell, 356 U. S. 44, 56 (1958).
See, e.g., Perri v. Dulles, 206 F.(2d) 586 (C. C. A. 3rd. 1963);
Tomasicchio v. Acheson, 98 F. Supp. 166 (Dist. Ct. D. C. 1951); Kanbara
v. Acheson, 103 F. Supp. 565 (S. D. Cal. 1952); Gensheimer v. Dulles,
117 F. Supp. 836 (D. N. J. 1954); cf. Perez v. Brownell, 356 U.
S. 44 (1958). But cf. Kondo v. Acheson, 98 F. Supp. 884 (S. D.
Cal. 1951), and Hamamoto v. Acheson, id., 904 (S. D. Cal. 1951).
75 Stat. 656 (1961), 8 U. S. C. A. sec. 1481 (c). The change seems
impliedly acknowledged in Woodby v. Immigration Service, 385 U. S. 276,
285, n.17 (1966)
See Morisette v. United States, 342, U. S. 246, 262, n. 21 (1952).
See Dennis v. United States, 341 U. S. 494, 499-500 (1951).
See Jackson, J., dissenting in part in American Communications
Association v. Douds, 339 U. S. 382, 437 (1950); Black and Douglas, J.
J., dissenting in part in Yates v. United States, 354 U. S. 298, 339,
342-343 (1957); Douglas, J., dissenting in Scales v. United States, 367
U. S. 203, 266 (1961); Douglas, J., dissenting from denial of certiorari
in Epton v. New York, 390 U. S. 29, 31, 32 (1968). Though the majority
opinion in Yates v. United States did not mention the treason cases, in
effect it squarely rejected the idea that the kind of overt act required
in treason should be interpreted as required in a statute punishing
conspiracy to advocate overthrow of the government by force. See Harlan,
J., for the Court, 354 U. S. 298, 334 (1957). Ege v. United States, 242
F.(2d) 879, 883 (C. C. A. 9th. 1957) explicitly rejected the argument
from treason doctrine as applicable to conspiracy charges (here a
conspiracy to violate the Mann Act): "... the overt act of the crime of
treason of Article III, section 3 of the Constitution is a substantial
part of the crime. Insubstantial overt acts may qualify to move a garden
variety of conspiracy agreement into the zone of crime and away from
'talking' and 'thinking'. Yet such overt acts may fall short of the
substance required for a treasonable overt act. Thus, in a way, treason
is sui generis." Compare, also, State v. Raley, 136 N. E. (2d) 295, 306,
307 (Ct.App. Ohio. 1954) (Federal Constitution's treason clause does not
preempt field so as to prevent a state investigation of treason or
seditious activity against either the United States or a state).
Cf. United States v. McWilliams, 54 F. Supp. 791, 793 (Dist. Ct.
D. C. 1944): An indictment for conspiracy to impair armed forces' morale
is not duplicitous for also charging conspiracy to commit treason, since
averments of defendants' conduct between 1933 and 1940 "cannot be deemed
a charge of conspiracy to commit treason.... since an essential element
therein is aid and comfort to 'enemies' and Germany did not become a
statutory enemy until December, 1941."
Martin v. Young, 134 F. Supp. 204, 207, 208 (N. D. Cal. 1955), discussed
in text at note 5, supra; majority and dissenting opinions in
Thompson v. Whittier, 185 F. Supp. 306, 314, 315 (Dist. Ct. D. C. 1960),
and text at notes 10, 11, supra. On the absence of a declaration
of war in the Korean fighting, see Hearings before the Committee on
Armed Services and the Subcommittee on Department of Defense of the
Committee on Appropriations, on S. 2950, U. S. Senate Documents, 89th
Congress, 2d Session, p. 279 (1966). On the issue of the existence of
such a "war" as would make the treason clause applicable, see Loane,
"Treason and Aiding the Enemy," 30 Military Law Review 43, 62 (1965),
and Ruddy, "Permissible Dissent and Treason", 4 Criminal Law Bulletin
145, 151-153 (1968).
Haupt v. United States, 330 U. S. 631, 634-635 (1947), and s. c., 152
F.(2d) 771- 789 (C. C. A. 7th. 1946).
Haupt v. United States, 330 U. S. 631, 635, 636, 641-642 (1947);
Kawakita v. United States, 343 U. S. 717, 735, 744 (1952); Gillars v.
United States, 182 F.(2d) 962, 968 (Ct. App. D. C. 1950); Best v. United
States, 184 F.(2d) 131, 137 (C. C. A. 1st. 1950), cert. den., 340 U. S.
939 (1951); see Martin v. Young, 134 F. Supp. 204, 208 (N. D. Cal.
1955). At p. 641 the Supreme Court's opinion in Haupt refers to the
intent as that "of aiding the German Reich, or of injuring the United
States," but in the whole context of the opinion it is clear that these
are not alternatives; intent to benefit the enemy cause is the core, and
where this is present there will also be intent (measured by
responsibility for the predictable consequences of action) to harm the
United States. See Chandler v. United States, 171 F.(2d) 921, 943 (C. C.
A. 1st. 1948), cert. den., 336 U. S. 918 (1949).
Gillars v. United States 182 F. (2d) 962, 974, 975 976-977 (Ct. App. D.
C 1950), D. Aquino v. United States, 192 F. (2d) 338, 358,
359-363 (C.C.A. 9th 1951), cert. den., 343 U.S. 935 (1952) As the plea
of duress was presented in the D'Aquino case it emphasized the
peculiarly unsupported and friendless condition of a United States
citizen caught in the enemy country by the outbreak of war Whatever
appeal lay in this aspect of the facts, the court found overcome by the
duration, detail, and liberal salaried status of defendant's employment
along with the want of evidence of serious incidents of focused threats
to her safety.
Haupt v. United States, 330 U.S. 631, 641 (1947) Dissenting, Murphy, J.,
thought that intent had not been proved He does not, however, seem to
say that defendant must be found not guilty if he had mixed purposes,
but rather that the father-son relation here gave so ambiguous a cast to
the purpose of defendant's actions that, in view of the general
restrictive policy on the scope of the treason offense, as a matter of
law doubt should here be resolved in favor of the defendant as having
intended only to help his son because he was his son Id., 647.
Chandler v. United States, 171 F. (2d) 921, 944 (C.C.A. 1st 1948), cert
den, 336 U.S. 918 (1949), Best v. United States, 184 F. (2d) 131, 137
(C. C.A. 1st 1950), cert. den., 340 U.S. 939 (1951).
See Gillars v. United States, 182 F. (2d) 962, 980 (Ct. App. D. C.
1950), United States v. Shinohara, C. M. O. 9, 1948, p. 280.
See Kawakita v. United States, 343 U.S. 717, 735 (1952), cf.
Nishikawa v. Dulles, 356 U.S. 129, 137 (1958).
See Kawakita v. United States, 343 U.S. 717, 733-735 (1952), Chandler v.
United States, 171 F. (2d) 921, 945 (C.C.A. 1st 1948), cert. den., 336
U.S. 918 (1949) Cf. D. Aquino v. United States, 192 F. (2d) 338,
366 (C. C.A. 9th 1951), cert. den., 343 U.S. 935 (1952) (what Geneva
Convention may permit enemy country to exact of prisoners of war does
not excuse intent to betray U.S. ).
See notes 13-16, supra.
Allegiance by presence Chandler v. United States, 171 F. (2d) 921, 930,
945 (C.C.A. 1st 1948), cert. den., 336 U.S. 918 (1949), Best v. United
States, 184 F(2d) 131 (C.C.A. 1st 1950), cert. den., 340 U.S. 939
(1951), Gillars v. United States, 182 F. (2d) 962, 979 (Ct. App. D.C.
1950), Burgman v. United States, 188 F. (2d) 637 (Ct. App. D.C. 1951),
cert. den., 342 U.S. 838 (1951), Allegiance by dual nationality as well
as presence Kawakita v. United States, 343 U.S. 717, 728, 733-735
(1952), cf. D'Aquino v. United States, 192 F(2d) 338, 349 (C.C.A.
9th 1951), cert. den., 343 U.S. 935 (1952).
D'Aquino v. United States, 192 F. (2d) 338, 349 (C.C.A. 9th 1951), cert.
den., 343 U.S. 935 (1952) The United States also properly held
individuals to present clear evidence that they had made the choice to
expatriate themselves, as against liability for treason Kawakita v.
United States, 343 U.S. 717, 723-726 (1952) (actions consistent with
dual nationality held insufficient to establish choice of expatriation),
Gillars v. United States, 182 F. (2d) 962, 983 (Ct. App. D.C. 1950)
(signing of vague statement of loyalty to enemy, given to government
corporation employer, insufficient) Burgman v. United States, 188 F.
(2d) 637, 640 (Ct. App. D.C. 1951) (requested instruction, that
defendant could not be guilty of treason if he believed that he was no
longer a United States citizen, held properly refused where record
showed no evidence for a reasonable basis of such belief).
Cramer v. United States, 325 U.S. 1, 34 (1945).
Haupt v. United States, 330 U.S. 631, 634, 635 (1947) Jackson's opinion
is at pains to assert that it is not altering but only applying, the
formulae of Cramer. Id., 635. In
total emphasis, however, the Haupt opinion more sharply
differentiates the matter of likely effect of the act (its capability of
conferring help on the enemy) from the matter of its commonplaceness or
suspicious character (its relevance as evidence on intent) than did the
Cramer analysis Cramer's conviction "was reversed because the
Court found that the act which two witnesses saw could not on their
testimony be said to have given assistance or comfort to anyone, whether
it was done treacherously or not." Ibid. Douglas, J., concurring,
thought that the Haupt opinion repudiated the Cramer
formulation on the nature of the required overt act Id., 645, 646
Murphy, J., dissenting in Haupt, apparently reads Cramer
as requiring both that the overt act not be ambiguous as evidence of
intent and that it constitute a giving of aid Hence he would free
defendant because defendant's acts of sheltering his son as much
evidenced a father's normal concern as father as it evidenced intent to
betray his country, in view of the strict policy of our law toward proof
of treason, this ambiguity of the act as evidence of intent in Murphy's
view made the act an insufficient overt act "An act of assistance may be
of the type which springs from the well of human kindness, from the
natural devotion to family and friends, or from a practical application
of religious tenets Such acts are not treasonous, however else they may
be described They are not treasonous even though, in a sense, they help
in the effectuation of the unlawful purpose To rise to the status of an
overt act of treason, an act of assistance must be utterly incompatible
with any of the foregoing sources of action." Id., 647 Murphy
does not ground his dissent on a finding that the total evidence of
treasonable intent was insufficient in Haupt, thus it appears
that he dissents specifically because he finds a fatal defect in proof
of the overt act, because in its context in this case the act of
sheltering could support different inferences as to defendant's intent
in doing it.
Though a somewhat clearer rule emerges by comparing the Cramer
and Haupt opinions, Mr Justice Jackson's second effort still
falls short of desirable clarity What appears to suffice about the overt
acts proved in Haupt is that they could reasonably be believed to
confer aid without proof of any other acts, in contrast, one could not
know from the two restaurant meetings proved in Cramer that they
gave aid without proof of other acts or circumstances involving Cramer's
cooperative behavior (that he undertook to arrange a meeting with the
saboteur's girl friend, that he agreed to and did at the second meeting
take charge of the saboteur's reserve money supply, that after the first
meeting he concealed his knowledge of the saboteur's presence) on which
two-witness evidence was not tendered. See Cramer v. United States, 325
U. S. 1, 37-39 (1945). So the Haupt opinion explains that "there
can be no question that sheltering, or helping to buy a car, or helping
to get employment is helpful to an enemy agent.... They have the
unmistakable quality which was found lacking in the Cramer case
of forwarding the saboteur in his mission. We pointed out that Cramer
furnished no shelter, sustenance or supplies.... No matter whether young
Haupt's mission was benign or traitorous, known or unknown to defendant,
these acts were aid and comfort to him. In the light of his mission and
his instructions, they were more than casually useful; they were aid in
steps essential to his design for treason." 330 U. S. 631, 635 (1947).
Further, the Haupt opinion intimates that if other acts or
circumstances environing defendant's acts must be shown in order to
create a reasonable basis for inferring that he gave aid, these further
acts or circumstances must also be proved by two witnesses in a way that
meets the constitutional requirement. Such seems the implication of the
rationale by which the Court's opinion distinguishes Cramer:
Cramer's conviction "was reversed because the Court found that the act
which two witnesses saw could not on their testimony be said to have
given assistance or comfort to anyone, whether it was done treacherously
or not. To make a sufficient overt act, the Court thought it would have
been necessary to assume that the meeting or talk was of assistance to
the enemy, or to rely on other than two-witness proof." Id., 635.
But this statement leaves the matter less than clear, for — as the
next-to-last quotation shows — the Haupt opinion itself assessed
the proved acts as acts of aid only in the light of a context ("in the
light of [the saboteur's] ... mission and his instructions") which was
itself not directly proved by two-witness evidence. Mr. Justice
Douglas's concurring opinion also fails to achieve a clearcut
formulation. But Douglas seems properly to make the point that the act
of sheltering was "quite innocent on its face" and "without more, was as
innocent as Cramer's conversation with the agent," because "nothing
would be more natural and normal or more 'commonplace' (325 U. S. p.
34), or less suspicious or less 'incriminating' (325 U. S. p. 35), than
the act of a father opening the family door to a son." Id., 644,
645. What Douglas is in effect highlighting is that, though the Court's
Haupt opinion finds that the likely aid effect of the acts there
proved by two witnesses was a reasonable inference from the acts alone,
in fact this was not so, but depending upon other facts of context which
were no more proved in Haupt by two witnesses than they were in
Cramer. Perhaps the implicit explanation turns on whether the
context necessary to show the likely effect of defendant's acts consists
in other acts of defendant (in which situation, the inference may be,
additional two-witness evidence is required) or in acts of other persons
(in which case, apparently, two-witness evidence is not required).
Justification for this distinction might arguably lie in the fact that
the Constitution's proof requirement focuses on proof of the defendant's
own overt acts. If this is the explanation, it is not made explicit in
either the Jackson or Douglas opinions in Haupt.
Chandler v. United States, 171 F. (2d) 921, 941 (C. C. A. 1st. 1948),
cert. den., 336 U. S. 918 (1949); Gillars v. United States, 182 F. (2d)
962, 968 (Ct. App. D. C. 1950); Best v. United States, 184 F.(2d) 131,
137 (C. C. A. 1st 1950), cert. den., 340 U. S. 939 (1951); Burgman v.
United States, 188 F.(2d) 637 (Ct. App. D. C. 1951), cert. den., 342 U.
S. 838 (1951); D'Aquino v. United States, 192 F. (2d) 338 (C. C. A. 9th.
1951), cert. den., 343 U. S. 935 (1952). See also, United States v.
Best, 76 F. Supp. 857, 861 (D. Mass. 1948), affirmed, supra. Cf.
Ex pane Monti, 79 F. Supp. 651 (E. D. N. Y. 1948), and s.c. sub nom.
United States v. Monti, 100 F. Supp. 209 (E. D. N. Y. 1951), and 168 F.
Supp. 671 (E. D. N. Y. 1958). The First Circuit Court of Appeals opinion
in Chandler v. United States perhaps, by inference, conceded some
embarrassment from the Cramer opinion when it notes that "Possibly the
overt acts, viewed in rigid isolation and apart from their setting,
would not indicate that they afforded aid and comfort to the enemy. But
viewed in their setting ... they certainly take on incriminating
significance." 171 F. (2d) 921, 941. However, the two-witness evidence
in the Chandler case not only proved particular acts, but also made
plain that the acts were not "commonplace" (cf. 325 U. S. 1, 34,
40) occurrences, but participation in meetings of an apparatus of the
German war effort.
Kawakita v. United States, 343 U. S. 717, 737, 738, 741 (1952). Cf.
Provoo v. United States, 215 F. (2d) 531 (C. C. A. 2d. 1954), reversing
124 F. Supp. 185 (S. D. N. Y. 1954); Martin v. Young, 134 F. Supp. 204
(N. D. Cal. 1955).
Kawakita v. United States, 343 U. S. 717, 738 (1952) ("It is the nature
of the act that is important. The act may be unnecessary to a successful
completion of the enemy's project; it may be an abortive attempt; it may
in the sum total of the enemy's effort be a casual and unimportant step.
But if it gives aid and comfort to the enemy at the immediate moment of
its performance, it qualifies as an overt act within the constitutional
standard of treason."); D'Aquino v. United States, 192 F. (2d) 338, 373
(C. C. A. 9th. 1951), cert. den., 343 U. S. 935 (1952). See also, United
States v. Kawakita, 96 F. Supp. 824, 837 (S. D. Cal. 1950), and 190 F.
(2d) 506, 520 (C. C. A. 9th. 1951), affirmed, supra.
Chandler v. United States, 171 F. (2d) 921, 941 (C. C. A. 1st. 1948),
cert. den., 336 U. S. 918 (1949). Cf. Gillars v. United States,
182 F. (2d) 962, 977 (Ct. App. D. C. 1950) (evidence that effects of
broadcasts were such as would support inference that defendant's true
intent was to aid United States might be admitted on issue of intent).
See Chandler v. United States, 171 F. (2d) 921, 938-939 (C. C. A. 1st.
1948), cert. den., 336 U. S. 918 (1949); cf. Gillars v. United
States, 182 F. (2d) 962,971 (Ct. App. D.C. 1950). The First Circuit
Court of Appeals took pains to note, however, that, subject to the clear
and present danger test, words might be punished as sedition in a
situation where they did not constitute treason. 171 F. (2d) 921, 939.
Chandler v. United States, 171 F. (2d) 921, 939 (C. C. A. 1st. 1948),
cert. den., 336 U. S. 918 (1949). Other broadcast cases were in
substance in accord with the Chandler ruling, though not with such
explicit statement: Gillars v. United States, 182 F. (2d) 962, 968, 971
(Ct. App. D. C. 1950); Best v. United States, 184 F. (2d) 131, 137 (C.
C. A. 1st. 1950), cert. den., 340 U. S. 939 (1951); Burgman v. United
States, 188 F. (2d) 637, 639 (Ct. App. D. C. 1951), cert. den., 342 U.
S. 838 (1951), affirming 87 F. Supp. 568, 571 (Dist. Ct. D. C. 1949).
Haupt v. United States, 330 U. S. 631, 635 (1947); Kawakita v. United
States, 343 U. S. 717, 742 (1952); Chandler v. United States, 171 F.
(2d) 921, 944 (C. C. A. 1st. 1948), cert. den., 336 U.S. 918 (1949). So,
too, the existence of defendant's continuing allegiance to the United
States (implicitly including the basis for a finding that defendant had
not chosen to expatriate himself) need not be proved by two witnesses.
Kawakita v. United States, 190 F. (2d) 506, 515, n. 11 (C. C. A. 9th.
1951), affirmed, supra.
Kawakita v. United States, 343 U. S. 717, 742 (1952).
Chandler v. United States, 171 F. (2d) 921, 944 (C. C. A. 1st 1948),
cert. den., 336 U. S. 918 (1949).
See Haupt v. United States, 330 U. S. 631, 643 (1947).
Id., 643. The Court intimated that a complete confession, out of
court, might be admissible as an admission, if it were offered merely to
corroborate other evidence. Ibid.
Kawakita v. United States, 343 U. S. 717, 743 (1952).
Haupt v. United States, 330 U. S. 631, 642 (1947); cf. Chandler
v. United States, 171 F. (2d) 921, 925, 943 (C. C. A. 1st 1948), cert.
den., 336 U. S. 918 (1949); Gillars v. United States, 182 F. (2d) 962,
967 (Ct. App. D. C. 1950); Best v. United States, 184 F. (2d) 131,
133-134, 137-138 (C. C. A. 1st. 1950), cert. den., 340 U. S. 939 (1951).
See Haupt v. United States, 330 U. S. 631, 640 (1947). In the judgment
of the Seventh Circuit Court of Appeals the requirement that the two
witnesses present "direct" evidence of the act was a gloss of the
Supreme Court upon the Constitution. See 152 F. (2d) 771, 787 (C. C. A.
7th. 1946), affirmed without note of this point, supra.
Haupt v. United States, 136 F. (2d) 661, 674 (C. C. A. 7th. 1943),
reversing first conviction, in part because instructions did not make
this point clear to the jury.
Id., 675, taking as another ground of reversing the first
conviction, that the trial court violated the constitutional two-witness
requirement by charging that if the jury found that the defendants
agreed among themselves to commit any of the charged overt acts, the act
of any one of them in furthering this design became in law the act of
all; the Circuit Court of Appeals ruled that "a defendant charged with
treason cannot, under a conspiracy theory, be convicted of an overt act
committed by some other person." Id., 676.
Haupt v. United States, 330 U. S. 631, 638-639 (1947).
Ibid. Comparison with the Seventh Circuit Court of Appeals
observations in its opinion reversing the first conviction, and of the
remarks of the judge dissenting from that court's affirmance of the
second conviction, show that the Supreme Court adopted a more flexible
definition of the "act", to the government's benefit. See 136 F. (2d)
661, 675 (C. C. A. 7th. 1943), and Minor, circ. j., dissenting, 152 F.
(2d) 771, 802, 803 (C. C. A. 7th. 1946).
See Chandler v. United States, 171 F. (2d) 921, 940, 941 (C. C. A. 1st.
1948), cert. den., 336 U. S. 918 (1949). Implicitly accord: Gillars v.
United States, 182 F. (2d) 962, 968, 971 (Ct. App. D. C. 1950); Best v.
United States, 184 F. (2d) 131, 137 (C. C. A. 1st. 1950), cert. den.,
340 U. S. 939 (1951); Burgman v. United States, 188 F. (2d) 637, 639
(Ct. App. D. C. 1951), cert. den., 342 U. S. 838 (1951); D'Aquino v.
United States, 192 F. (2d) 338 (C. C. A. 9th. 1951), cert. den., 343 U.
S. 935 (1952). It was not a defect of evidence that the two witnesses to
defendant's making of a particular recording for broadcast were unable
to testify to its precise content, where the recording was proved to be
part of defendant's continuing service to the enemy radio program.
Chandler v. United States, supra, 942. The First Circuit Court of
Appeals there also said that the evidence would not fail though the
particular recording contained no propaganda message, where the evidence
showed that a planned aspect of the continuing program was to limit
propaganda content in order to keep the broadcasts as a whole attractive
as entertainment. Ibid.