Treason in the Constitution, Sedition in the U.S. Code, and Mutiny Under Article 94 UCMJ

A few weeks ago I received an email from one of my former students, Greg. He wrote me the following.

“Professor McNamee,

I am seeing and hearing some terms: treason, sedition and mutiny on social media. I recall you discussing these in our law class a few years ago. I think one of them may be a common law term and the others are constitutional or statutory. Different posts on social media use them in ways I don’t recall you discussing in class. The meanings seem to blur and are emotional in context and I am tempted to use them the same ways. Could you redefine them for me so I don’t use them incorrectly? Thanks, Greg”

Greg,

Here goes. You couldn’t have picked a more complicated set of terms that are so easy to misapply. So, let me try to give you the same explanations I gave back during our classes. Let us start with treason.

Treason is unique. It is the only crime expressly defined by the Constitution (in Article III Section 3), and applies only to United States citizens who have betrayed the allegiance they owe the United States. While the members of the Constitutional Convention all shared the view that citizens owed a duty of loyalty to their country, they included the Treason Clause to guard against the use of treason prosecutions by repressive administrations to stop legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention focused on narrowly defining the crime.  

The Constitution specifically identifies what constitutes treason against the United States and, importantly, limits the offense of treason to two types of conduct. First, “levying war” against the United States; or secondly, “adhering to [the] enemies [of the United States], giving them aid and comfort.”

The offense of “levying war” against the United States was interpreted narrowly in Ex parte Bollman & Swarthout (1807), it was not enough, Chief Justice John Marshall’s opinion emphasized, merely to conspire “to subvert by force the government of our country” by recruiting troops, procuring maps, and drawing up plans. The accused had to have accomplished (an) “actual assemblage of men for the purpose of executing a treasonable design.”

In Cramer v. United States (1945) the Court explained that a person could be convicted of treason only if he or she adhered to an enemy and gave that enemy “aid and comfort.” Comfort being defined as some benefit.  As the Court explained: “A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our unity and diminish our strength, but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” So, the Constitution requires both some concrete action and an intent to betray the nation before a citizen can be convicted of treason. Expressing traitorous thoughts or intentions by themselves are not enough.

To safeguard honest citizens, the Treason Clause provides that the offense may only be proven by “open confession in court,” or on “the testimony of two witnesses to the same overt act.” The “overt act” requirement was designed to limit the behavior to the defendant’s conduct, not verbal expressions of thought allowed by free speech. And to ensure that the conduct itself demonstrated a defendant’s intention to betray the United States. The government would have to prove that each overt act alleged “actually gave aid and comfort to the enemy.” (emphasis added)

The Constitution also narrowed the scope of punishment. Unlike the old English common law which stripped property or other benefits from the descendants of the convicted person, only a punishment can be levied which affects the convict themself.

Sedition: Now moving on to sedition. I will try to keep this one short since treason needed some case law illustrations. Sedition is a serious felony punishable by fines and up to 20 years in prison and it refers to the act of inciting revolt or violence against a lawful authority with the goal of destroying or overthrowing it.

The federal law against Seditious Conspiracy, often referred to as simply “Sedition”, can be found in Title 18 of the U.S. Code (which includes treason, rebellion, and similar offenses), specifically at 18 U.S.C. § 2384. According to the statutory definition of Sedition, it is a crime for two or more people within the jurisdiction of the United States: “ To conspire to overthrow or destroy by force the government of the United States or to level war against them;   To oppose by force the authority of the United States government; to prevent, hinder, or delay by force the execution of any law of the United States; (or) To take, seize, or possess by force any property of the United States contrary to the authority thereof.

In order to get a conviction for sedition, the government must prove that the defendant actually conspired to use force. Just discussing the use of force is not the same thing and in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution "by any means necessary" have not necessarily conspired to overthrow the government. They may only be sharing their opinions, however despicable. But actively planning or partially carrying out such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy. The goal of the statute is to prevent threats against the United States while protecting individuals' First Amendment rights.

Sedition differs from treason in its basic nature. While seditious conspiracy is conduct or language inciting rebellion against the authority of a state, treason is the more-serious offense of actively levying war against the United States or giving aid to its enemies. Another way of looking at it is that seditious conspiracy often occurs before an act of treason. Sedition is not a commonly charged offense in this country.

Mutiny is a form of military sedition. In Federal Statute at 10 U.S.C.A Section 894, and the Uniform Code of Military Justice Article 94, mutiny is an insurrection or uprising of soldiers or sailors against the authority of their commanders and / or legitimate civilian authority. A military member is guilty of an offense under this Code section and Article if, with the intent to usurp or override lawful military authority refuses with another person or persons to obey orders or otherwise do his duty or creates any violence or disturbance. Sometimes, mutiny, may be committed by a single individual and may or may not be violent in nature. Simple refusal to obey orders under the right circumstances may be considered mutiny. Article 94 of the UCMJ is one of the largest and most complicated articles in the entire Uniform Code for military service members.

Should any service member be convicted of any of the charges under Article 94, they could face extraordinarily tough sentencing. Even some lesser included offenses under the Article include extensive maximum jail time, up to a decade, and force the military member out of the military with a dishonorable discharge and a loss of all military benefits and pay. While it is unlikely, even the less serious offenses found within Article 94 could carry with them the penalty of death, regardless of whether the actions were taken in a time of war or peace.

Greg, I hope this answers your question.