An Old Means to a Different End: The War on Terror, American Citizens . . . and the Treason Clause
In 2004, Supreme Court Justice Antonin Scalia, while dissenting in Hamdi v. Rumsfeld, stated that when the United States government accuses one of its own citizens of waging war against it, “our constitutional tradition has been to prosecute him in federal court for treason or some other crime.” Justice Scalia added that “[c]itizens aiding the enemy have been treated as traitors subject to the criminal process.” The tradition that Justice Scalia speaks of, though, has not been practiced recently. The government has either utilized conspiracy statutes, which encompass some of the elements of treason, or the government has labeled American citizens as enemy combatants and proceeded to detain them indefinitely. Justice Scalia’s reference to treason, therefore, appears in today’s context to be nothing more than a passing note. However, this should not be the case. The government should use the treason clause enshrined in the Constitution as a means to prosecute American citizens detained during the war on terror and later designated as enemy combatants. There needs to be a refocus on treason, not just because there are American citizens waging war against their country, but because the treason clause is a prosecutorial tool that can be used to successfully prosecute these citizens. The treason clause has been used successfully in the past, and there is no substantive reason why it cannot be again.