
Abstract
Two decades into the global war on terror, the United States has a vast legal and institutional architecture for prosecuting "international" terrorism. A sprawling global intelligence network, thousands of informants in U.S. communities, and a highly permissive legal regime feed the prosecution of hundreds of Muslim defendants. Despite this intense state response and the panoply of charges brought, the U. S. government has charged treason in these cases on only one occasion, over fifteen years ago. Given the prominence of treason charges as a response to political violence in earlier eras, commentators have periodically asked why the treason charge has now virtually disappeared.
This Article advances both legal and sociocultural explanations for the near absence of treason charges in the "war on terror" and the implications for addressing political violence. On the legal side, terrorism charges have replaced treason because they enable the government to do almost everything that it once sought to accomplish with treason charges: they impose extraordinary stigma, they reach speech and advocacy, and they trigger severe penalties. At the same time, terrorism charges face fewer limits than treason charges: they criminalize conduct far removed from actual plots, they require a lesser showing of intent, and they dispense with treason's constitutionally imposed evidentiary restriction. As a result, terrorism prosecutions bypass the constraints adopted to prevent abuse of treason prosecutions. These legal explanations exist alongside a likely sociocultural explanation for treason's disuse in terrorism cases: as severe as it is, a treason accusation presupposes shared belonging in apolitical community. But many view U.S. Muslims as racial and religious outsiders rather than as members of the nation, facilitating treatment as "international" terrorists and "enemy combatants" rather than as citizens guilty of betrayal.
The broader lesson is that, after particular criminal charges decline in use because of legal or political constraints, new charges emerge that can replicate the concerns that caused older charges to recede. That is true of terrorism charges, which replicate some of the abuses feared in treason prosecutions decades earlier. But in time, a similar displacement could potentially occur even with respect to terrorism, as new charges appear (or reappear) to counter other emerging threats. Reimagining national security requires vigilance regarding the shape-shifting nature of responses to political violence.
Start Page
275
Recommended Citation
Sinnar, Shirin
(2025)
"Terrorism, Not Treason: The Rise and Fall of Criminal Charges,"
University of Chicago Legal Forum: Vol. 2024, Article 8.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/8