Professor Charles Warren asks: ‘What is Giving Aid and Comfort to the Enemy?’

 

 

Charles Warren, ‘What is Giving Aid and Comfort to the Enemy?,’ 27 Yale L.J. 331 (1918):

 

“Hence, treason by levying war is more generally committed in internal insurrections directed against the government by persons in the United States; whereas giving aid and comfort is generally committed in connection with a war waged against the United States by a foreign power. When those who commit treason by levying war become an organized body politic, however, they may become ‘enemies’ within the purview of the law, and giving aid and comfort to such enemies will constitute treason. [citing The Prize Cases]

 

The acts constituting giving aid and comfort to the enemy are more numerous and of wider scope than the acts constituting the first branch of the crime, viz., the levying of war. It is important to note this point, for it has been largely disregarded by text-book writers and by judicial authorities (owing probably to the fact that prior to the Civil War every case of treason in the federal courts, with few exceptions, was a case of levying war). As a result of this failure to distinguish between the different elements necessary to constitute the separate branches of the crime, doctrines of law applicable only to levying war have been stated by writers and judges to apply to giving aid and comfort to the enemy. Careful consideration shows, however, that while every action which, when performed by domestic insurrectionaries, will constitute a levying of war, will, when performed in connection with a war with a hostile foreign nation, also constitute a giving of aid and comfort to the enemy, the reverse of this statement is not true. For many actions which give aid and comfort to the enemy are not actions which necessarily constitute a levying of war [or a domestic insurrection or rebellion]. Thus, since levying of war consists, in general, of the actual assemblage of men in force, the mere ‘enlistment of men to serve against the government does not amount to levying war,’ unless followed up by actual assemblage in force.”

 

Id. at 333 (footnote omitted) (emphases added), <https://openyls.law.yale.edu/handle/20.500.13051/11345>; 

Seth Barrett Tillman, Professor Charles Warren asks: ‘What is Giving Aid and Comfort to the Enemy?’, New Reform Club (Oct. 20, 2023, 5:56 AM), <https://reformclub.blogspot.com/2023/10/professor-charles-warren-asks-what-is.html>;