By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli
This is part two (2) or our four (4) part series to determine if Hillary Clinton is can be charged with the crime of Treason.
New York, NY -(Ammoland.com)- “But these two things shall come to thee in a moment in one day, the loss of children, and widowhood: they shall come upon thee in their perfection for the multitude of thy sorceries, and for the great abundance of thine enchantments.
For thou hast trusted in thy wickedness: thou hast said, ‘None seeth me.’ Thy wisdom and thy knowledge, it hath perverted thee; and thou hast said in thine heart, ‘I am, and none else beside me.’
Therefore shall evil come upon thee; thou shalt not know from whence it riseth: and mischief shall fall upon thee; thou shalt not be able to put it off: and desolation shall come upon thee suddenly, which thou shalt not know.” ~ ISAIAH 47:9—11, King James Version
Whom May Federal Prosecutors Charge With Treason?
Federal prosecutors may charge with treason those American citizens who betray their Country. A citizen owes loyalty to his Country. That is self-evident. Treason is treachery to one’s Country.
But, may prosecutors charge non-citizens with treason? Non-citizens don’t owe their loyalty to our Country. They aren’t expected to.
Some say Barack Obama isn’t a United States citizen and, so, prosecutors cannot indict him on treason. But is that true? No; it isn’t true. Obama is subject to our Nation’s treason law, citizen or not. A common misconception is that a person must be a citizen of the United States to face a charge of treason. That’s untrue. Non-citizens who reside in the United States must adhere to all laws of the United States while here.
Federal prosecutors can charge noncitizens with treason as they may citizens. How do we know that? The U.S. Supreme Court says so.
Over a century ago, the Supreme Court ruled that aliens, whether here legally or not, aren’t beyond our treason law. The Supreme Court ruling is more than one hundred years old, but it is still good law.
The U.S. Supreme Court said;
“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.” Carlisle vs. United States, 83 U.S. 147 (1873). The high Court, in Carlisle, added, “. . . it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be, unless his case is varied by some treaty stipulation.” Id.
Treason In U.S. Law
Treason comprises: levying war against the sovereign United States or adhering to the Nation’s enemies, giving them aid or comfort. Treason is a federal crime; a felony. The crime of treason appears in both our Constitution and federal Statute. We see it in Article III, Section 3, Clause 1 of the Constitution. We see it in the United States Code, 18 U.S.C. § 2381. Treason is treachery to Nation. Treason is the supreme betrayal to Country. Long ago, the U.S. Supreme Court made that point poignantly clear.
“Treason is the most serious offense that may be committed against the United States.” Stephan vs. United States, 133 F2d 87 (6th Circuit, 1943), certiorari denied, 318 US 781 (1943), citing, Hanauer v. Doane, 79 U.S. 342, 79 U.S. 342, 20 L.Ed. 439, 12 Wall. 342 (1871). “No crime is greater than treason.”
What Does Levying War Mean?
The U.S. Supreme Court explained the meaning of ‘levying war,’ in a two-hundred year old case:
Ex Parte Bollman, 8 U.S. 75 (1807), superseded by statute on other grounds as stated in Ex parte Monti, 79 F Supp. 651 (DC NY 1948). The Supreme Court’s comprehensive explanation of ‘levying war’ has stood the test of time. The high Court said, “What is the natural import of the words ‘levying war?’ And who may be said to levy it? . . . Taken most literally, they are perhaps of the same import with the words raising or creating war, but as those who join after the commencement are equally the objects of punishment, there would probably be a general admission, that the term also comprehended making war, or carrying on war. . . . If for example, an army should be actually raised for the avowed purpose of carrying on open war against the United States and subverting their government, the point must be weighed very deliberately, before a judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases, who never saw the army, but who, knowing its object, and leaguing himself with the rebels, supplied that army with provisions, or by a recruiting officer holding a commission in the rebel service, who though never in camp, executed the particular duty assigned to him.” The Court said, further: “Taking this view of the subject, it appears to the court, that those who perform a part in the prosecution of the war may correctly be said to levy war and to commit treason under the constitution.”
Let’s not obscure the meaning of the words, ‘levying war,’ by drawing a distinction between a formal Declaration of War and use of military force without formal Declaration.
Article I, Section 8, Clause 11 of the U.S. Constitution says that Congress has sole authority to declare war. Yet, not since World War II did Congress declare war against a foreign actor. Congress agreed to a President’s use of the armed forces since then with no Congressional declaration of war.
George W. Bush set up a war on terror to be sure. We are in armed conflict with Islamic extremists.
Disagreement among legal experts exists over whether a charge of treason can stick without a formal Congressional declaration of war against a foreign actor. But, “if a congressional authorization to use military force can authorize the President to detain enemy combatants absent a declaration of war, such authorizations surely must also satisfy the enemy requirement of the Treason Clause.
In short, if a person can be treated as an enemy combatant without a declaration of war, it would make little sense for that same person not to be considered an enemy for the purposes of the Treason Clause.”*
*- ARTICLE: DID THE COURT KILL THE TREASON CHARGE?: REASSESSING CRAMER V. UNITED STATES AND ITS SIGNIFICANCE, 36 Fla. St. U. L. Rev. 635, Paul T. Crane, Solicitor General of the United States, 2008-2009.
American citizens who join forces with radical Islam have levied war against the United States. Federal prosecutors can charge those citizens with treason. Yet, in the last sixty years, federal prosecutors charged and prosecuted only two treason cases: the latest in 2006; the earlier one in 1952. Id.
A federal grand jury indicted Azzam al-Amriki Gadahn aka “Azzam the American,” on charges of treason in 2006 for giving aid to al-Qaeda.
“The indictment alleged that Gadahn, an American citizen, ‘knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort, within the United States and elsewhere, with intent to betray the United States.’ This charge was based on Gadahn’s participation in several videotapes produced by al-Qaeda between October 2004 and September 2006, in which he appeared with al-Qaeda leaders Osama bin Laden and Ayman al-Zawahiri, espoused his support for the terrorist organization, praised the attacks of September 11th and the bombings in London and Madrid, and threatened future attacks against the United States. Notably, Gadahn was not in United States custody when the indictment was issued and currently remains at large.” Id.
Fifty years earlier, federal prosecutors charged an American, Anthony Cramer, with treason.
“The treason prosecution of Anthony Cramer has its roots in the infamous Nazi Saboteur Affair. In 1942, seven German soldiers traveled by submarine and secretly landed on the east coast of the United States with plans to destroy American industrial war facilities. The saboteurs were eventually caught, tried by military tribunal, and sentenced to either death or imprisonment. The Supreme Court denied the saboteurs’ habeas corpus petitions in Ex Parte Quirin. Anthony Cramer was not a saboteur but rather a friend of one.” Id.
The lower federal Court convicted Cramer of treason. The U.S. Court of Appeals for the Second Circuit affirmed the conviction. Cramer appealed to the U.S. Supreme Court. The Supreme Court vacated the charge of treason.
Still, “although the Court vacated Cramer’s conviction, the government did not let him go free. While treason charges could have been brought again, the two sides reached a plea agreement on a different charge. Cramer pled guilty to violating the Trading with the Enemy Act and was sentenced to six years in prison.” Id.
Apart from “levying war” against the United States, a person also commits the crime of treason if that person gives aid and comfort to our Nation’s enemies. What does the phrase, ‘giving aid and comfort,’ mean? The U.S. Supreme Court explained what the phrase, ‘giving aid and comfort,’ means in the case, Kawakita vs. United States, 343 US 717 (1952), rehearing denied, 344 US 850 (1952).
The phrase, “aid and comfort,” is broad. It refers to any act that strengthens the enemy, and at once weakens the power of the United States to resist or to attack its enemies. But there’s a “kicker.” To satisfy the element of the crime, the act must be overt.
“One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray.” Kawakita vs. United States, 343 US 717 (1952).
“To give aid and comfort to our Nation’s enemies requires an act and an intent to act a desire to betray our Country.” Id. Further, “two witnesses are required, not to the disloyal and treacherous intention, but to the same overt act.” Id.
Treason is notoriously difficult to prove in Court even if legitimately prosecuted.
This takes us to Part three: the penultimate, but not ultimate question. Did Hillary Clinton, commit treason?
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