The Cramer Case.—Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and have charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States,1343 the issue was whether the “overt act” had to be “openly manifest treason” or if it was enough if, when supported by the proper evidence, it showed the required treasonable intention.1344 The Court in a five-to-four opinion by Justice Jackson in effect took the former view holding that “the two-witness principle” interdicted “imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,”1345 even though the single witness in question was the accused himself. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,”1346 Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer’s treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.
The Haupt Case.—The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States.1347 Here it was held that although the overt acts relied upon to support the charge of treason—defendant’s harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant—were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: “No matter whether young Haupt’s mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son’s instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear.”1348
1343 325 U.S. 1 (1945).
1344 89 Law. Ed. 1443-1444 (Argument of Counsel).
1345 325 U.S. at 35.
1346 325 U.S. at 34-35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: “adherence to the enemy; and rendering him aid and comfort.” A citizen, it was said, may take actions “which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” Id. at 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7 Wm. III, c.3.
1347 330 U.S. 631 (1947).
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defend-ant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas, who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:
‘As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.’
‘The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.’
‘The Cramer case departed from those rules when it held that ‘The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness. 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transfomred into a incriminating one.’1349
1348 330 U.S. at 635-36.
1349 330 U.S. at 645-46. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: ‘But the act of providing shelter was of the type that might naturally arise out of petitioner’s relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be.’ Id. at 649.
The Kawakita Case.—Kawakita v. United States1350 was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan’s surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport.” The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.1351
1350 343 U.S. 717 (1952).
1351 343 U.S. at 732. For citations in the subject of dual nationality, see id. at 723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. “As a matter of law, he expatriated himself as well as that can be done.” Id. at 746.
Last modified: June 9, 2014