Treason, Terrorism and Wartime Criminal Justice Essay Example for Free

Treason, Terrorism and Wartime Criminal Justice Essay In the history of the United States the acts of treason, terrorism and criminal justice during times of war have taken on various forms. From the Sedition Act of 1798 to the current war on terror, the Constitution and its amendments have been challenged to ensure national security. To understand this we must first look at what treason and terrorism are and the effects they have had in the reduction of civil liberties during times of war. Treason   Treason is defined as: â€Å"The betrayal of ones own country by waging war against it or by consciously or purposely acting to aid its enemies. †Ã‚   (Wehl, 1950) Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them â€Å"aid and comfort† has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given. The Treason Clause applies only to disloyal acts committed during times of war. Acts of disloyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of Espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel Rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II. â€Å"Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President Andrew Johnson issued a universal amnesty.† (Smith, 1956) The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers. As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty â€Å"beyond a reasonable doubt†. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an â€Å"overt act† of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary. Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The First Amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during World War I was not constitutionally protected speech (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. Aliens who reside in the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II. â€Å"Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A.  § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.† (Chapin, 1964) Terrorism Terrorism is defined as: â€Å"The unlawful use or threat of violence, especially against the state or the public as a politically motivated means of attack or coercion.† (Davenport, 2009) When we speak about terrorism, we initially mean transnational terrorism, which takes the form of the violent conflict between two or more different states. If we take terrorism as violation of certain social norms, the norms of what state should we take into account? On the one hand, terrorism directly violates the social norms of the society against which it is directed. On the other hand, terrorism becomes an acute response to the threats, under which the social norms of the terrorist state may appear. With the growing threats of terrorist attacks, numerous attempts have been made to explain the causation and roots of terrorism. There are several political, economic, and psychosocial theories which explain what terrorism is. The notion of terrorism has been discussed from the viewpoint of different disciplines and from various theoretical perspectives. Terrorism has been depicted more in political and social, rather than criminological terms. There have not been too many attempts to link terrorism to crime. This is why we still lack profound understanding of terrorism’s causation. Research has not produced any new theories which would explain terrorism. As a result, we can only utilize the existing well known crime theories to explain the notions and the roots of terrorism. The traditional picture of modern terrorism implies that terrorism has mainly Islamic roots. The extreme conservatism of the Islamic world and its reluctance to become a part of the worlds technological revolution may also serve the cause of terrorism. Rapid technological change changes the way institutions relate to one another. Change produces new norms, and new values. Those socialized to the old norms take time to adapt, and this ‘time lag’ results in the normative confusion between the old and the new societal values. (Laufer Adler, 1998) When such changes expand beyond the borders of one state and involve whole nations and continents, there will always be those who would refuse to conform to the new norms. The transition from the older to the newer norms actually causes significant stress onto the societal conscience. Terrorism is the ultimate act of opposition against the imposed implementation of the new norms. As states use terrorism to prove their social or political position, they defend their social norms and violate the norms of other states. Trying to determine the roots of terrorism, we must look at the so-called irrationality of terrorism†. This hypothesis stems from the theory of rational choice. Although it is difficult to deny that terrorism is a rational choice activity, in many instances rational choice remains irrelevant to explaining terrorism as a crime. This is further proof of the fact that we need one unified objective theory which would draw the terrorism cause in logical terms. On the one hand, terrorism as a crime is irrational in responsiveness to incentives. (Caplan, 2005) This factor determines the willingness of a person to commit a crime: the better the incentives are, the more inclined towards a crime a person will be. Moreover, rational choice suggests weighing all possible alternatives in choosing the tactics of specific crime. â€Å"The same holds for suicidal terrorism. Groups do not adopt suicide tactics for their own sake. They adopt them because they work†. On the other hand, we cannot explain terrorism within the theoretical framework of narrow self-interests which is integrally linked to traditional rational choice theory of crime. (Wilson, 2005) â€Å"Suicidal terrorism is far stronger counter-example to narrow self-interest. From a non-evolutionary viewpoint, it is impossible to reconcile the two. No matter how much you receive for your services, it does you no good if you are not alive to consume anything. Furthermore, if you get paid first and die later, there is an end-game problem. A selfish agent would take the money, then do everything in his power to back out† (Caplan, 2005). â€Å"Terrorism is first and foremost a criminal matter†. However, criminologists still fail to produce a relevant and explicit theory about terrorism as a crime. We possess sufficient knowledge about terrorism as a political, economic, or social phenomenon, but for some reason we keep forgetting that terrorism is a crime, and we primarily perceive as a crime with its peculiar characteristics. We will never be able to develop sound anti-terrorism preventive measures, if we lack understanding of terrorism from the criminological perspective. (Hamm, 2007) We must be aware of what causes terrorist crimes, what justifies them, and how we can deal with terrorist violence. Our primary task is to shift the emphasis from political to criminological perspective of terrorism. We must ultimately recognize that prevalence and incidence of terrorism requires criminological re-consideration. The new crime theory of terrorism must be multifaceted, and should link criminology of terrorism to its political dynamics and environmental contingencies. (Laufer Adler, 1998) Wartime Criminal Justice Historically, Americans risk losing civil liberties in wartime. Two risks to civil liberties arise out of war situations, first that under the guise of emergency, powers concentrated into the hands of government agents are misused, and second, that when the emergency ends, liberties formerly enjoyed are permanently eroded. The Constitution divides war powers between the Congress and the President.   This division was intended by the framers to ensure that wars would not be entered into easily: it takes two keys, not one, to start the engine of war. The Constitutions division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle), Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort), and a sort of twilight zone of concurrent powers.   In the zone of concurrent powers, the Congress might effectively limit presidential power, but in the absence of express congressional limitations the President is free to act.   Although on paper it might appear that the powers of Congress with respect to war are more dominant, the reality is that Presidential power has been more importantin part due to the modern need for quick responses to foreign threats and in part due to the many-headed nature of Congress. A brief survey of American history indicates that virtually every war has been accompanied not only by necessary restrictions on individual freedoms, but on overreactions, often hysterical, that has unnecessarily curtailed the liberty of Americans. The undeclared naval war by Britain and France on the fledgling United States in the 1790s led President Adams’ Federalist controlled Congress to pass the â€Å"Alien and Sedition Laws†Ã¢â‚¬â€clear violations of the First Amendment. Prosecutions under the law, soon after repealed, were politically motivated. President Lincoln suspended the writ of habeas corpus in thousands of cases during the Civil War. Although historians have granted the necessity and even the restraint of these acts, the Supreme Court repudiated this unilateral presidential power after the War ended. A World War I sedition law made criticism of the military draft a crime. Sedition prosecutions stifled free speech. In reaction, the ACLU (American Civil Liberties Union) was formed and in a series of landmark cases, the Supreme Court strengthened First Amendment freedoms, limiting the ability of government to stifle unpopular political expression. Fear of Bolsheviks in post-World War I turmoil, a deadly Wall Street bombing, and assassination threats in 1919 led to the â€Å"Palmer Raids†Ã¢â‚¬â€round-ups of thousands of people around the country, mostly leftist or pro-labor, organized by J. Edgar Hoover under the authority of Attorney General A Mitchell Palmer. More than a hundred-thousand Japanese-Americans were interned for the duration of World War II in a tragic overreaction to the Pearl Harbor attack, a move upheld by the Supreme Court. President Roosevelt authorized national security wiretapping and eavesdropping on his authority, a necessary action that led to later abuses that were curbed by the Foreign Intelligence Surveillance Act (FISA). During the Korean War, President Truman nationalized the steel industry in order to break a strike that threatened war production. The Supreme Court swiftly ruled that this was an unconstitutional extension of the president’s war powers. The longest and most severe threat to civil liberty was the rise of the â€Å"national security state† for at least half of the twentieth century in an effort to thwart the real threats of fascism, Nazism, and expansionist Soviet communism under Stalin. Fascism and the Axis Powers were defeated both by military victories in World War II and by post-war assistance that painstakingly built constructed democratic regimes in Japan, Germany and Italy. â€Å"The long struggle to contain communist global expansion, warped American politics and justice in the 1950s, with political trials, loyalty oaths, Sen. Joseph McCarthy witch hunts (which missed real Soviet spies), artists’ blacklisting, local police department ‘red squad’ snooping, CIA spying on Americans within the country, FBI wiretapping Martin Luther King, Jr. And civil rights leaders, and a climate of political fear that equated a belief in racial equality or other liberal opinions with communism by the FBI.† (Stone, 2005) The anti-Vietnam War protests of the 1960s produced repressive political crimes and political trials, which carried over into the wiretapping abuses of the Nixon Administration resulting in the president’s resignation under threat of impeachment. After these emergency periods passed, repressive laws were typically repealed or declared unconstitutional, and excessive law enforcement behavior was curbed. The nations commitment to free speech rebounded, usually rather quickly, and sometimes more robustly than before. A Congressional report declared that the Sedition Act of 1798 had been passed under a mistaken exercise of power and was null and void. The Sedition Act of 1918, which was repealed two years later, helped give birth to the modern civil liberties movement. And in 1976, President Ford formally prohibited the C.I.A. from using electronic or physical surveillance to collect information on domestic activities of Americans, and the new F.B.I. director, Clarence Kelly, publicly apologized for F.B.I. abuses under J. Edgar Hoover. (Sofaer Williams, 2002) In summary, we see how acts of treason against the United States have taken on different forms. If an act can weaken the power of the United States to attack or resist its enemies, aid and comfort has been given, and thus treason has been committed. Terrorism has evolved both in complexity and with technology. It can take on domestic and international forms and is the ultimate act of defiance against a society. Politics and religion feed the terrorists’ fervor and with the advancements in explosives, even suicide bombers pose a significant threat. As terrorism and treason have evolved, so too have the responses to those acts. From the Sedition Act to the Patriot Act, these responses have been controversial but necessary to ensure the safety of our nation. Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. References Caplan, B. (2005). Terrorism: the relevance of the rational choice model. Criminology 43 (4), pp. 1039-1060. Chapin, B. (1964).   The American Law of Treason: Revolutionary and Early National  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Origins. Seattle: University of Washington Press. Davenport, A. (2009). Basic Criminal Law: The Constitution, Procedure, and Crimes. Upper Saddle River: Pearson Press. Hamm, M. (2007). Terrorism as a crime: from Oklahoma City to Al-Qaeda and beyond. New York: NYU Press. Laufer, W. Adler, F. (1998). Advances in criminological theory. Piscataway: Transaction Publishers. Smith, J. (1956). Freedoms Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca: Cornell University Press. Sofaer, A. Williams, P. (2002). Doing Justice During Wartime. Retrieved May 10, 2009, from Stanford University, Hoover Institution Web site: http://www.hoover.org/publications/policyreview/3461221.html Stone, G. (2005). Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism. New York: Norton, W. W. Company, Inc. Weyl, N. (1950). Treason: The Story of Disloyalty and Betrayal in American History. Washington D.C.: Public Affairs Press. Wilson, R. (2005). Human rights in the ‘War on Terror’. Cambridge: Cambridge University Press.