Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

1. Basic Criminal Law: The United States Constitution, Procedure and CrimesAnniken U. Davenport

2. UNIT THREE: CRIMINAL LAW Chapter 11 Treason, Terrorism, and Wartime Criminal Justice

3. Introduction and Historical Background • Treason and sedition are crimes that punish the disloyalty of a country’s citizens and resident aliens. • One of the earliest examples of restrictions borne of doubts about loyalty were the Alien and Sedition Acts of 1798. • The Alien Act increased the time needed to qualify for citizenship from 5 to 14 years and gave the president the power to expel any foreigner he considered dangerous. • Wartime Power • The Constitution provides for the power to declare war. • The constitution grants to Congress “the power…to declare war, grant letters or marque and reprisal, and make rules concerning captures on land and water.”

4. The Constitution also gives Congress the power: • To raise and support armies; • To provide and maintain a navy; • To make rules for the government and regulation of the land and naval forces; and • To call up the militia to execute the laws of the Union and suppress insurrections and repel invasions. • The Constitution provides that: • The President shall be the Commander in Chief of the Army and Navy, and of the Militia of the several states when called into the actual Service of the United States. • Since 1973, the power to commit troops over-seas had also been governed by the War Powers Resolution, passed by Congress. • The legislation provides that the President may commit troops when Congress has declared war, when Congress has specifically authorized troops to be deployed, or when the United States has been attacked.

5. On February 19, 1942, President Roosevelt signed Executive Order 9066. The order authorized the military to clear sensitive areas of any and all persons and to restrict movement into and out of such areas. • By March 2, 1942, the military designated the western half of California, Oregon, and Washington as a military area and ordered those of Japanese heritage removed. • All in all, over 110,000 people were confined to internment camps until the end of the war. • Many of the internees, most of whom were U.S. citizens, lost their homes and businesses. • Congress apologized decades later, and President Ronald Reagan signed the Civil Liberties Act of 1988. The Act was passed by Congress to provide a Presidential apology and symbolic payment of $20,000 to the internees, evacuees, and persons of Japanese ancestry who lost liberty or property due to the forced internments.

6. Habeas Corpus in Wartime and the Question of Military Tribunals • Habeas Corpus, or the “Great Writ”, is a legal term that literally means “have the body.” It literally orders another authority to bring a person held to the court. • A state prisoner who believes the conditions in his prison cell amount to cruel and unusual punishment can have access to a federal court to hear that complaint by filing a habeas corpus petition. • English legal scholar Blackstone thought the right of habeas corpus as “the bulwark of the British Constitution.” • The federal government has employed the use of military tribunals during time of war.

7. Military Tribunals Today • In the aftermath of the terrorist attacks on September 11, 2001, President George W. Bush signed an Executive Order authorizing the detention and trial of non-citizens by military tribunals. • President Bush’s order announced that the rules of evidence ordinarily applied to criminal cases tried in federal court would not be followed. The order covers non-citizens designated as any of the following: • If they are or were Al Qaida members; • If the engaged in, aided or abetted, or conspired to commit acts of international terrorism; and • If they have harbored such individuals. • The order also says the president can designate non-citizens for military trials if “it is in the best interest of the United States.”

8. Those designated for military trial will be tried under the following conditions: • The military commission sits as trier of fact and law. • The presiding officer can admit any evidence that has “probative value to a reasonable person.” • The Secretary of Defense designates the prosecutor, and the defendant may have an attorney. • Conviction can be by vote of two-thirds of the commission, and sentencing agreed upon by two-thirds of the commission. • Any appeal goes to the President or the Secretary of Defense, and their decision is final. • Some member of Congress as well as civil rights organizations have questioned whether President Bush had the authority to call for tribunals without the express consent of Congress.

9. On the last day of the 2003-2004 term, the Supreme Court told the Bush administration that any American citizen held as an enemy combatant without charges must be given a meaningful opportunity to challenge that designation before an independent and neutral decision-maker. • Defining Treason and Sedition • Treason is the only crime that is specifically defined in the Constitution. • The Constitution provides that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” • The Constitution also specifically provides that “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.”

10. Treason is a breach of allegiance to the United States; therefore, only those who the law defines as owing allegiance to the United States can be prosecuted for treason. • Elements • There are two elements to the crime of treason: • Adherence to the Enemy • Enemies of the United States are defined as any “party who was [a] subject of foreign power in state of open hostility with [the] United States.” • Rendering the Enemy Aid and Comfort • Examples of rendering aid and comfort to the enemy are: • Any act that strengthens the enemy or weakens the United States; or • Concealing a spy’s identity, or supplying him with funds and assistance.

11. Defenses • Various defenses are available to a person charged with treason. • Duress • In order for this defense to succeed, the defendant must demonstrate that he or she was in immediate danger of loss of life or severe bodily harm. • First Amendment Privilege • The First Amendment’s guarantee of free speech does not apply to treasonous speech. • Immunity from Prosecution • If the defendant can demonstrate that he or she is part of a class of people who have been granted immunity, he or she can avoid prosecution. The most notable case of this happening was the blanket amnesty given confederate soldiers after the Civil War.

12. Sedition is a conspiracy “to overthrow, put down, or to destroy by force the Government of the United States, or levy war against them, or to oppose the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” • The elements of sedition are: • Conspiracy • A conspiracy is an agreement between two or more persons to engage in a criminal act. • Overthrow of the United States • Any group who states that their goal is the overthrow of the government of the United States by unconstitutional means would possess this element.

13. Oppose by Force the Authority of the United States • This element is satisfied if a person or persons attempts by force to prevent actual exercise of federal authority. • Prevent, Hinder, or Delay Execution of Law • To satisfy this element the person or persons involved must forcibly resist the government’s execution of the law. • During World War I, draft resistors were prosecuted under the sedition statute. • Use of Force • Any seditious conspiracy must contemplate the use of force. • Defining Terrorism • Espionage, terrorism, and other subversive activities may amount to treason, but are separate crimes.

14. Espionage includes: whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classifies information. • Rebellion or insurrection includes: whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto. • Advocating overthrow of government includes: whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government.

15. On September 11, 2001, the United States faced the worst attack on its civilian population in its history. • Congress quickly authorized the President to take military action against the terrorists and the nation that provided them shelter, Taliban-ruled Afghanistan. • At the same time, Congress also passed tough new amendments to the Antiterrorism and Effective Death Penalty Act of 1996. The amendments are commonly referred to as the Patriot Act of 2001.