The Word is ‘Treason’

What exactly does a U.S. citizen have to do in order to be tried and convicted for treason in the United States? And why are these trials so rare in an age of increasing domestic terrorism?

In the wake of the Orlando shooting early Sunday morning inside a gay nightclub, questions began swirling about Muslim gunman Omar Matteen — an American citizen born to Afghani parents. Mateen killed 49 people and injured 53 others that horrific morning in the deadliest mass shooting on U.S. soil. But even though the Orlando massacre is under investigation as “domestic terrorism,” President Obama largely painted the shooter as “a person filled with hatred” who targeted the LGBT community with the help of lax gun control laws.

“We have constructed an ‘Alice in Wonderland’ fantasy world where terrorism … has nothing to do with ideology or religion. If we perpetuate that fantasy, Americans will continue to be slaughtered.”

Practically ignoring the crime for what it was — perpetrated by an Islamic extremist intent on wreaking havoc and death in the U.S. — Obama focused instead on the more “politically correct” and convenient issues at hand. But recognizing radical Islamic terrorism for what it truly is requires excising “political correctness” from the discussion; terrorism is only minimized when it is treated as a “hate crime” against a certain people group or social group.

But “political correctness” simply will not do, and even further complications exist that extend far beyond the Obama administration’s avoidance tactics: Why isn’t terrorism classified and treated as treason, a crime that can incur the death penalty?

“We have constructed an ‘Alice in Wonderland’ fantasy world where terrorism … has nothing to do with ideology or religion. If we perpetuate that fantasy, Americans will continue to be slaughtered,” said Dr. Sebastian Gorka during an interview on “The Laura Ingraham Show” Monday. “We have to stand up and recognize this is a religious war inside Islam — not with Islam, but inside Islam — because Muslims are being slaughtered, too. But to say it has nothing to do with religion and it’s about guns and unemployment is un-American. It is shameful.”

“And it’s also treason,” LifeZette Editor-in-Chief Laura Ingraham said. “I mean, no one even mentions — this is treason against the United States. This is absolute treason. You’re at war with your own country. These are American citizens.”

Article III, Section 3, Clause 1 of the Constitution defines treason thus: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. 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.”

“Most likely, prosecutors simply find it easier to charge terrorist suspects with terrorism-specific crimes, thus avoiding difficult issues about the law of treason, as well as the two-witness-to-the-same-overt-act requirement.”

Since the founding of the United States, fewer than 50 treason cases have been prosecuted. But with so few cases levied against criminals for such serious crimes, why doesn’t the heinous perpetration of domestic terrorism fall under consideration?

For example, why didn’t the case of the three Muslim men from Minnesota who were convicted earlier in June on charges of conspiracy to commit murder and to join the Islamic State amount to treason? Why weren’t they — as American citizens — tried for treason? Should they have been tried for treason?

Carlton F.W. Larson, a professor of law at University of California, Davis School of Law, offered some insight to LifeZette regarding treason law and procedures.

“The last treason prosecutions were in the wake of World War II (perhaps not coincidentally, America’s last declared war),” Larson wrote in an email, noting one of the Constitution’s requirements that treason accusations be pursued if the suspect is “levying war against” the U.S.

“I’m not especially familiar with the Minnesota case, but I believe that involved conspiracy and attempts to travel to Syria to join ISIS. This couldn’t be tried as levying war against the United States, since no war was actually levied (a long line of cases say that attempts to levy war are not treason),” Larson wrote. “Arguably, they could be convicted of giving aid and comfort to the enemy, assuming that ISIS constitutes an enemy. But if the aid didn’t actually happen, it may just be an attempt.”

Larson also speculated that the prosecutors in question may have avoided the treason charges — which are difficult to prove — in favor of pursuing easier charges.

“Most likely, prosecutors simply find it easier to charge terrorist suspects with terrorism-specific crimes, thus avoiding difficult issues about the law of treason, as well as the two-witness-to-the-same-overt-act requirement,” Larson wrote.

Either way, whether the crimes are depicted as treason or as terrorism, Gorka declared that both the U.S. and the Obama administration desperately need to rethink their approach to the issues at hand.

“We have lots of statutes, lots of laws on the books that could be used to fight this scourge. This is subversion. It is attacking the Republic,” Gorka told Ingraham. “It’s not about hate crimes. It’s not about individuals that have mental instability. It is an attack against everything that the Republic stands for, and, again, the administration dropped the ball.”