During the Senate inquiry, a number of witnesses raised concerns that in its original form, the definition of 'assist' was broad enough to encompass the provision of humanitarian relief. That problem was rectified by subsequent amendment which inserted sections However, the question of the meaning of 'assists', which is not defined in the Criminal Code , has remained a live issue.
The ALRC has recommended that the term be amended to 'materially assists' to avoid uncertainty about the scope of its application.
ALRC have also argued that a closer connection between the conduct and the capacity of the country, organisation or state to 'engage in war' or 'engage in armed hostilities' should be drawn to remove any residual ambiguity. It follows that the 'by any means whatever' should be deleted from both subsections to ensure internal consistency in the drafting.
Additionally, ALRC proposed that an explanatory note be added to the provision to clarify the intended meaning of 'materially' to 'make clear that mere rhetoric or expression of dissent are not sufficient.
In our view, given the seriousness and penalties attached to the offence it is crucial that the law achieves the highest degree of certainty. The removal of ambiguity and greater precision are important legal policy principles and the Committee sees considerable merit in ALRC recommendations. A more contentious issue concerns the application of extended geographical jurisdiction category D, to the crime of treason.
Under section There is no citizenship or residency qualification. That is, the offence can be committed by anyone acting any where in the world. Historically, the crime of treason was based on the principle of allegiance to the Crown. On the basis of its comparative research, ALRC argues that the principle of allegiance has retained its importance in the law of treason.
By way of background, the Gibbs Committee argued the case for the extension of treason to apply to Australia's defence force in the following terms:. Given a situation short of war, the proposed offence must, it is thought be distinguished from treason. Further, the right of a citizen to express his or her dissent must be recognised. However, there could be situations where, at least to the man or woman in the street, it would not be clear that hostilities involving Australian Defence Force members had commenced.
Therefore, the operation of the provision must be dependent on a proclamation as to the existence of such hostilities. First and foremost, as the indictment against Adam Gadahn demonstrated, treason is not yet completely extinct. And because the Court in Cramer did not in fact make treason impossible to prove, there remains the possibility that treason charges could one day increase in relative frequency. If that does happen, the Treason Clause sets forth important requirements on how such charges must be proven.
Second, while the specific protections set forth in the Treason Clause may be limited to treason prosecutions, the principles underlying the Clause are not. Indeed, they should serve as important reminders about national security cases more generally.
The Framers correctly believed there was a crucial distinction between traitorous actions and treasonous thought. Departing from English common law, which at the time recognized constructive treason, the Constitution required some sort of action before a person could be convicted of treason. That line between conduct and conscience dovetails with First Amendment values, and is one that should be respected beyond the narrow confines of treason.
In addition, the Framers recognized that national security offenses are more likely to inflame public passions, and therefore deserve heightened procedural protections. This insight also extends beyond treason cases, and is one Congress, federal courts, and the public would do well to remember. The Treason Clause is in this sense among the stronger pieces of textual evidence that the courts were to have as much a role in evaluating the existence of certain individual threats to national security as they would in adjudicating any other kind of crime.
Yet while the Treason Clause includes special rules of evidence to help guard against the danger that otherwise peaceful opponents of our government would face false accusations of supporting our enemies, neither the material support statute, nor other comparable federal offenses, contain any such safeguards. Is it really consistent with the Treason Clause for there to be such a ready way to avoid its protections?
For government to be able to achieve the same ends—prosecution for aiding the enemy—without having to encounter any of the hurdles designed to guard against the abuses of such a charge that so concerned the Framers?
Act July 24, , ch. Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or. Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or.
Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—. Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms "organizes" and "organize", with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
Section consolidates sections 10, 11, and 13 of title 18 , U. Section 13 of title 18 , U. In first paragraph, words "the Government of the United States or the government of any State, Territory, District or possession thereof, or the government of any political subdivision therein" were substituted for "any government in the United States". In second and third paragraphs, word "such" was inserted after "any" and before "government", and words "in the United States" which followed "government" were omitted.
In view of these changes, the provisions of subsection b of section 10 of title 18 , U. Reference to conspiracy to commit any of the prohibited acts was omitted as covered by the general conspiracy provision, incorporated in section of this title. See reviser's note under that section. Words "upon conviction thereof" which preceded "be fined" were omitted as surplusage, as punishment cannot be imposed until a conviction is secured.
The phraseology was considerably changed to effect consolidation but without any change of substance. Amendment by act July 24, , as applicable only with respect to offenses committed on and after July 24, , see section 3 of act July 24, , set out as a note under section of this title.
B 1 The following organizations shall be required to register with the Attorney General:. Laws against treason, sedition, rebellion, and insurrection may seem obscure or arcane, but they are on the books for those real instances in which the expression of strong beliefs, which is constitutionally protected, crosses into actions that fundamentally betray and threaten our government.
In times of intense division, such actions pose more danger even as their meaning becomes more contestable. Punishments for disloyal acts are a means of insisting on who has legitimate power in our constitutional democracy, and of deterring those who are shown to be trying to destroy it.
The legal terms may seem archaic, and sometimes have been misused or abused, but that should not blunt their precise relevance to our unfortunate contemporary situation. The Capitol was breached by Trump supporters who had been declaring, at rally after rally, that they would go to violent lengths to keep the President in power.
A chronicle of an attack foretold. By Luke Mogelson. The message from Democrats is that, even though Trump will soon be out of office, the act of a President inciting an attack on Congress is in a category of its own.
By Amy Davidson Sorkin. He must be held accountable. An Air Force combat veteran was part of the mob in the Senate. The invaders enjoyed the privilege of not being taken seriously. The crisis of the Republican Party has only begun.
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