Criminal Law
Chapter 13
Crimes Against the State
Joel Samaha, 9th Ed.
Treason
Treason is the only crime
defined in the U.S. Constitution.
(Article III, Section 3)
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.
Penalty: death, or shall be imprisoned not less than five years and fined
under this title but not less than $10,000, and shall be incapable of
holding any public office under the United States.
Elements of Treason
Actus reus
a. Treason requires levying war against the U.S.
b. Treason also requires giving aid and comfort to enemies of the U.S.
Mens Rea
a. Defendants must have had the intent to give aid and comfort.
b. The intent must have been for the very purpose of betraying the U.S. by
means of that aid and comfort.
Proof
a. Two witnesses to the actus reus are required.
b. Confession in open court is also proof.
Sedition
Sedition includes advocating the violent overthrow
of the U.S. government by either speech,
writing (libel), or conspiracy.
(U.S. Code, Title 18, Part I, Chapter 115)
Sabotage
Sabotage is damaging and/or destroying property
related to war and defense material,
buildings, and utilities
(which includes transportation and harbors).
Sabotage also includes producing defective property
related to war and defense.
Elements of Sabotage
Actus reus
a. Includes: destroy, damage, obstruct, interfere, contaminate, and/or produce
defective war or national defense materials.
Mens Rea
a. The defendant has to purposely obstruct (or commit any other acts in actus
reus).
b. The defendant has to knowingly obstruct (or commit any other acts in actus
reus).
c. The defendant has to negligently obstruct (or commit any other acts in actus
reus).
Circumstance
a. The sabotage has to take place when the U. S. is at war.
b. Sabotage can also take place during a national emergency.
Espionage
Espionage is secret intelligence gathering by spies
about foreign people, activities, and enterprises
for political and military uses.
Elements of Espionage
U.S. Code espionage elements (any time)
Actus reus
a. Includes: communicate, deliver, transmit, or attempt to communicate, deliver, or
transmit intelligence information harmful to the U.S.
Mens Rea
a. The defendant has to injure purposely.
b. The defendant has to have reason to believe use of the intelligence will cause injury.
Circumstances
a. Intelligence was provided to a foreign government.
b. Intelligence was provided to a foreign faction or party.
c. Intelligence was provided to a foreign military or naval force.
d. Intelligence was provided to a foreign representative, officer, agent, employee,
subject, or citizen.
Elements of Espionage
U.S. Code espionage elements (during war).
Actus reus
a. Collect any intelligence useful to the enemy, publish it,
communicate it, or attempt to do so.
Mens rea
a. The intent to communicate information to the enemy.
Circumstance
a. It occurs during time of war.
Antiterrorism Crimes
Treason, sedition, sabotage, espionage, murder,
attempted murder, and conspiracy to murder
can all be used to prosecute crimes
related to terrorists and terrorist organizations.
Specific antiterrorism crimes are prosecuted under
U.S. Code Chapter 113 B, “Terrorism;”
the Anti-Terrorism and Effective Death Penalty Act (1996);
and the U.S.A. Patriot Act (2001).
Specific Antiterrorism Crimes*
Use of certain weapons of mass destruction.
Acts of terrorism transcending national boundaries.
Harboring or concealing terrorists.
Providing material support to terrorists.
Providing material support or resources to designated foreign terrorist
organizations.
* The code divides terrorism into two kinds: international terrorism (outside the
U.S.) and domestic terrorism – acts intended to intimidate or coerce a civilian
population, acts that intimidate or coerce public policy making, or acts that
affect the government by mass destruction, assassination, or kidnapping.
Use of Weapons of Mass Destruction
A weapon of mass destruction is:
a. “any destructive device” – explosive, incendiary, poison gas, bomb, grenade,
rocket, missile, mine, or similar device.
b. any weapond intended to cause death or serious bodily injury by poisonous
chemicals or precursor
c. any weapon involving a disease mechanism
d. any weapon designed to release radiation or radioactivity at levels
dangerous to human life
Actus reus: Use, threaten to use, or attempt or conspire to use.
Mens rea: Without lawful authority – voluntary.
Circumstance: Either use against a U.S. “national” outside the U.S.; use
against any “person” inside the U.S.; use against any U.S. government
property inside or outside the U.S.; or, use against any foreign government‟s
property inside the U.S.
Acts of Terrorism
Transcending National Boundaries
It is a felony for anyone whose conduct
transcends national boundaries –
acts that take place partly outside and partly inside the U.S.
(U.S. Code, Section 2332b)
Actus reus
a. committing violent crimes against any person inside the U.S., e.g.,
kill, kidnap, maim, assault, assault with a deadly weapon.
b. create a substantial risk of serious bodily injury by destroying or
damaging property within the U.S.
c. threatening or attempting or conspiring to commit (a) or (b).
Harboring or Concealing Terrorists
Actus reus
a. harboring or concealing persons who have committed or are about
to commit a list of terrorist-related crimes (the list of terrorist-related
crimes is basically all of the crimes already mentioned – treason,
sedition, sabotage, espionage, using weapons of mass destruction, etc.).
Mens rea
a. knowing (or a reasonable person should have known) the crimes
listed under the actus reus were going to be committed.
Providing “Material Support” to Terrorists
and/or Terrorist Organizations*
Since September 11, 2001,
the most commonly prosecuted crime
against the state.
Actus reus
a. provide material support or resources to individual terrorists or terrorists
organizations
b. conceal or disguise the nature, location, source, or ownership of material support or
resources
Mens rea
a. intending or knowing that support or resources are to be used in preparing or
committing a list of crimes helpful to terrorist or terrorist organizations.
* Material support includes: currency or financial instruments, financial services, lodging,
training, expert advice, safe houses, communications equipment, personnel,
transportation, weapons or explosives, etc.
What are the facts and opinion in
Humanitarian Law Project, v. Gonzales (2005)
Does the „void-for-vagueness doctrine‟ apply to this case?
If so, in what way?