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.1
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 mission.
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
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
(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.3 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 official power.
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 enemy.4 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
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.6United 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."7United 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.8 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
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 statute.9 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.10 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 dissent below.11
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.12Knauer 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.13 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.14 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.15 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,17 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 force.18 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.19
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.20 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.21 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
Post-Cramer 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 overt act.22 The requisite intent is one to
benefit the enemy's war effort and to harm that of the United States.23
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
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.25 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.26 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.27 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.28 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.29 So, as
we have already seen, conscripted service in the enemy army will be taken to
reflect duress and not a voluntary change of allegiance.30 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.31 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
(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."33 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 enemies."34 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.35 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 circumstances.36
Sufficient acts of aid were shown where defendants participated in staff
conferences and made broadcast recordings for enemy radio propaganda
programs,37 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.38 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 no
defense.39 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
The radio-broadcast 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.41 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 Evidence
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.43 On the other hand, intent might be
inferred from the overt acts.44 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.45
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.46 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.47 Defendant's statements contemporary with properly
proved overt acts are proper evidence of intent.48 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 admissible.49
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.50 Two-witness testimony to defendant's admissions of an
act did not meet the requirement of two-witness evidence to the act
itself.51 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.52
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.53 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.54 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.55
1. 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 further
2. 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).
3. 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).
4. 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).
5. 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.
6. 40 Stat. 218, 219 (1917), 62 Stat. 737 (1948), 68 Stat. 1219 (1954),
18 U. S. C. A. sec. 794.
7. 195 F. (2d) 583, 611 (C.C. A. 2d 1952), cert. den., 344 U.S.
8. 354 F. (2d) 132, 152 (C. C. A. 2d. 1965). Cf. Gorin v. United
States, 312 U.S. 19 (1941).
9. Wellman v. Whittier, 259 F. (2d) 163, 167 and 167, n. 15 (Ct. App. D.
10 Thompson v. Whittier, 185 F. Supp. 306, 314, 315 (dissent) (Dist. Ct.
D. C. 1960).
11. Same case, sub. nom. Thompson v. Gleason, 317 F. (2d) 901 (Ct. App.
D. C. 1962).
12. Knauer v. United States, 328 U. S. 654, 679 (dissent).
13. Nishikawa v. Dulles, 356 U. S. 129, 134 (1958). See Mandoli v.
Acheson, 344 U. S. 133, 135 (1952).
14. 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).
15. 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).
16. 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,
17. See Morisette v. United States, 342, U. S. 246, 262, n. 21
18. See Dennis v. United States, 341 U. S. 494, 499-500 (1951).
19. 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).
20. 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
21. 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).
22. Haupt v. United States, 330 U. S. 631, 634-635 (1947), and s. c.,
152 F.(2d) 771- 789 (C. C. A. 7th. 1946).
23. 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).
24 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.
25 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.
26 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).
27 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.
28 See Kawakita v. United States, 343 U.S. 717, 735 (1952), cf.
Nishikawa v. Dulles, 356 U.S. 129, 137 (1958).
29 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
30 See notes 13-16, supra.
31 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
32 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).
33 Cramer v. United States, 325 U.S. 1, 34 (1945).
34 Id., 37.
35 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
36 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.
37. 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.
38. 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).
39. 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),
40. 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).
41. 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.
42. 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).
43. 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,
44. Kawakita v. United States, 343 U. S. 717, 742 (1952).
45. Chandler v. United States, 171 F. (2d) 921, 944 (C. C. A. 1st 1948),
cert. den., 336 U. S. 918 (1949).
46. See Haupt v. United States, 330 U. S. 631, 643 (1947).
47. 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.
48. Kawakita v. United States, 343 U. S. 717, 743 (1952).
49. 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).
50. 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.
51. 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.
52. 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.,
53. Haupt v. United States, 330 U. S. 631, 638-639 (1947).
54. 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.
55. 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.