Roger Hertog Program on Law and National Security
Betrayal and disloyalty are grievous moral wrongs, yet today when the disloyal commit treason we seem reluctant to punish them. John Walker Lindh fought for the Taliban with full knowledge that it was engaged in hostilities against the United States.1 It should not have been so difficult to prove by two witnesses to the overt act, as the Constitution requires, that he adhered to the enemy giving them aid and comfort.2 Admittedly, there were legal problems about whether the Taliban as an indirect enemy in an undeclared war could qualify as the enemy in the constitutional sense.3 But there was the alternative clause of "waging war against the United States," which a soldier armed and fighting for the Taliban presumably did.4The reasons for not prosecuting Lindh for treason had little to do with the technical requirements of the offense. Many in Washington regarded him as a confused kid following his religious commitments without responsibility for the larger military conflict.5 They did not have the will to label him a traitor and punish him accordingly.
Treason still carries the death penalty,6 but that sanction is of dubious constitutionality. The Supreme Court has struck down the death penalty in cases where it was imposed for crimes less heinous than homicide.7 And though some might think that disloyalty is worse than homicide (and apparently it was in Renaissance Italy),8 that strong view of the crime is not likely to prevail today.
George P. Fletcher,
Ambivalence about Treason,
N. C. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1054