//  7/27/17  //  In-Depth Analysis

By Carlton F.W. Larson, Professor of Law, University of California, Davis, School of Law

In recent months, a number of people have asked me how the development of modern cyberwarfare affects treason law.  It is a good question—most of the American treason precedents are from the late eighteenth and early nineteenth centuries, long before the development of computers or the internet.

To me, the issue is best approached using the lawyer’s favorite tool: the analogy.  If a non-digital equivalent to cyberwarfare is treason, then the cyber version probably is as well.  But if the non-digital equivalent is not treason, it does not become so merely because it was accomplished with cyber means.

There are two forms of treason recognized under the United States Constitution: (1) levying war against the United States; and (2) adhering to our enemies, giving them aid and comfort.  Each raises slightly different issues with respect to cyberwarfare.

Let’s consider enemies first.  As I explained in a prior post, an enemy for purposes of the Treason Clause is a foreign nation or group against whom the United States has declared war, or with whom we are in a state of open war.  If the United States wanted to, it could certainly treat cyberattacks from foreign nations as acts of war.  Take an extreme example – a foreign nation somehow hacks into our nuclear stockpile and causes an American nuclear weapon to detonate on American soil.  The United States would clearly treat this as an act of war, and would respond in kind.  It is irrelevant whether the attack was accomplished through a missile or through the internet.  Either method is equally an act of war.

But there will inevitably be a number of “cyberattacks” that will not rise to this level. Governments probe each other’s computer systems all the time.  Sometimes these are quite significant, such as the Stuxnet attack on Iran.  Most of these cases are dealt with, however, by low-level retaliation, or are simply ignored.  A cyberattack only creates a state of war if the attacked nation chooses to treat it as such.  Russian cyberattacks on American democracy could potentially be viewed as acts of war, but if, and only if, the United States declares them to be so and responds in kind.  And so far we have not.

That leaves “levying war against the United States,” which seems a more natural fit for cyberwarfare.  Collaboration with a foreign nation is not an element of this offense, so let’s consider it from a purely domestic perspective.  Does an American commit treason by levying war if he or she launches a cyberattack on the United States?

There are few American decisions on the meaning of the levying war requirement.  The United States Supreme Court considered the issue in the 1807 case of Ex parte Bollman, arising out of the Aaron Burr case.  The Court, in an opinion by Chief Justice Marshall, noted, “To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design.”  Moreover, the Court quoted an earlier ruling by Justice Samuel Chase that “The court are of opinion that a combination or conspiracy to levy war against the United States is not treason unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war, but it is altogether immaterial whether the force used is sufficient to effectuate the object—any force connected with the intention will constitute the crime of levying war.”

Presiding over the treason trial of Aaron Burr, Chief Justice Marshall elaborated, “It is equally clear that an intention to commit treason is an offence entirely distinct from the actual commission of that crime.  War can only be levied by the employment of actual force.  Troops must be embodied, men must be assembled, in order to levy war.”  “Why is it,” Marshall asked,  that a single armed individual entering a boat, and sailing down the Ohio for the avowed purpose of attacking New Orleans, could not be said to levy war?”  The answer was clear—such a person “is apparently not in a condition to levy war.”

The cases thus suggest that to levy war some amount of force must be employed. Moreover, levying war cannot be accomplished by a lone individual; there must be an assemblage of men.

The reasoning of these cases is, of course, tied to the technology of the time.  In 1807, there was very little that a solitary individual could do to levy war against the United States.  But times have changed.  A lone individual can now potentially wield the power of thousands, if not millions, of eighteenth-century soldiers.  So how do we interpret these cases in a modern world?

There seem to be two possible options.  One is to insist that the cases say what they say—treason by levying war requires an assemblage of men, period.  If there is no assemblage, there is no treason.  The other is to conclude that the relevant legal requirement is the use of force.  But what constitutes that force can change with technological developments.  The Court’s insistence in 1807 on an assemblage of men was simply a factual conclusion based on current realities.  And factual conclusions are subject to revision.  From a functional perspective, it seems silly to claim that we should be more worried by three men with guns than by one man with a suitcase nuke.  As I asked in a 2006 article, why should flying a plane into the Pentagon be an act of levying war against the United States if there are two terrorists in the cockpit, but not if there is only one?

This is not an easy issue, and it will eventually have to be addressed by any court considering the application of treason law to cyberwarfare.  This issue was debated at the UC Davis School of Law Moot Court finals this past spring, and there were spirited arguments on both sides.

If a court did require an assemblage of men, there would still remain difficult issues about what constitutes assemblage in a modern era.  Would there be assemblage if people coordinated attacks over the internet or the telephone, but never actually met in person?

Assuming the assemblage issue is overcome, the strongest argument for treating cyberwarfare as treason would arise in those cases which are largely indistinguishable from traditional acts of levying of war.  When force is applied directly against the United States government for the purpose of incapacitating it, it shouldn’t matter that the force used is electronic.  I think all of the following would easily qualify: using a computer to hack into the Pentagon and launch a nuclear missile against Washington, DC; hacking into an airplane’s computer and directing it to fly into the White House; and creating an electric surge that renders the nation’s power grid unusable.

If cyberattacks are launched against non-governmental institutions, however, the treason analogy is less obvious.  Suppose someone hacked Wal-Mart, resulting in the destruction of its central computers and the loss of all of its data.  The relevant non-digital analogy would seem to be someone burning down Wal-Mart’s headquarters.  It’s a crime, but it’s not treason.

Similarly, other types of cybercrimes don’t easily analogize to treason either.  For example, hacking into an organization to steal its documents seems most analogous to a burglary.  As far as I’m aware, no one thought the Watergate burglars were guilty of treason.  Likewise, hacking into a voting machine to change the results seems most analogous to ballot stuffing or ballot tampering.  A crime has clearly been committed, but not the crime of treason.

One final problem.  The Treason Clause requires that any conviction be supported by the testimony of two witnesses to the same overt act, or confession in open court.  Treason is the only crime with such a stringent evidentiary requirement.  Indeed, even a crystal clear video of the crime being committed would, by itself, be insufficient for conviction.  In many cases of cyberattacks, the two witness requirement will be almost impossible to meet.  Will there really be two witnesses to someone orchestrating an attack from a computer in his house?  Accordingly, I suspect the government would almost always choose to pursue these cases under charges other than treason.

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP