Skye Fall: Treason on Agents of SHIELD

 One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act.

Justice William Douglas

Kawakita v. United States, 343 U.S. 717 (U.S. 1952)

We knew it would happen: Is Skye a traitor? Does Skye’s communications with Miles of the Rising Tide in episode five of Agents of SHIELD “Girl in the Flower Dress” amount to treason?

Let’s first review the crime of treason to understand whether or not Skye is a traitor. Lisa_SHIELD_0546Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], 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.” United States Constitution, Article III, Section 3.

Two World War II era cases are very helpful in understanding what is “treason.”

Meeting for a Beer is Not Treason

In Cramer v. United States, the Defendant was a naturalized US citizen who had immigrated from Germany after the first World War. He was convicted of treason because of his actions with two other Germans who had enter the country via submarine to cause acts of sabotage. Cramer v. United States, 325 U.S. 1 (U.S. 1945).

Justice Jackson wrote the Supreme Court opinion overturning Cramer’s conviction.

Justice Jackson had a masterful prose in his opinions. He would also prosecute Nazi war criminals at Nuremberg. His opening statement in the prosecution of those Nazi monsters should be required reading in every world history class.

Cramer’s innocence turned on the fact his actions did not amount to treason under the law. He did not know the purpose of the Germans who had entered the country, but suspected his friend had returned by submarine. Cramer’s actions included the following:

1) Responding to an unsigned note on his door to meet;

2) Meeting his former friend for drinks;

3) Getting in touch with the German’s girlfriend; and

4) Putting money in a safe deposit box for the German.

The trial judge at the time of sentencing said:

“I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States or planned to do that.

“From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew or believed what they really were, I should not hesitate to impose the death penalty.”

Cramer, at *5-6.

The Supreme Court reversed the conviction, on the grounds the overt acts were not sufficiently proven. Justice Jackson stated for the Court:

It is not difficult to find grounds upon which to quarrel with this constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that “Treason may sometimes be practiced in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy.” The provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that “prosecutions for treason were generally virulent.” Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.” We still put trust in it.

Cramer v. United States, 325 U.S. 1, at *12-48 (U.S. 1945).

The American Student in Japan Who Tortured POWs Was a Traitor

A first generation Japanese-American was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943.  Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

The Defendant was employed by the Oeyama Nickel Industry Co., Ltd. during the war as an interpreter. He never joined the Japanese Army. Id.

American POW’s who survived the Bataan Death March were used by Oeyama Nickel Industry Co., Ltd. for slave labor in a mine to process 200 carloads of ore a day. They were beyond sick and unhealthy. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The Defendant would have only been on trial as a war criminal if he had lost his US citizenship. However, the Supreme Court held the Defendant never lost his US citizenship during the war.

Justice Douglas stated:

There were two overt acts in this category. Overt act (a) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.

Each of these acts was aimed at getting more work out of the prisoners — work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy’s project; it may be an abortive attempt; it may in the sum total of the enemy’s effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, “If war be actually levied, . . . all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” These two overt acts, if designed to speed up Japan’s war production, plainly gave aid and comfort to the enemy in the constitutional sense.

Kawakita, at *738-739.

There were other overt acts of cruelty to American prisoners of war.

Justice Douglas drove home the ruling with the following:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

Skye Fall

Did Skye commit overt acts against the United States? Are there two witnesses to the same overt acts? Did Skye give aid and comfort to the enemy at the immediate moment of its performance?

LeslieSHIELD_2771The question is whether Skye provided aid to the enemy.

Skye’s actions of texting Miles with the Rising Tide are more than meeting someone for a drink or putting money in a safety deposit box like in Cramer v. United States, but not near the actions of the Defendant in Kawakita.

Skye might have had disloyal thoughts towards SHIELD in her belief that information should be free, but that would not make her a traitor.

The question is did she ever communicate anything to The Rising Tide at the moment of its performance (assuming the group is a threat to the United States such as Nazi Germany or a terrorist group)?

That answer might be yes. If Skye actually provided Miles with the information he sold to Centipede, she actively, though unknowingly, aided an international hostile group experimenting on human beings with the intention of giving them powers. Skye would have a weak defense if she claimed she did not know about the sale, only the goal that the information be freely available to all. This is a weak defense because freely available classified information in the hands of a terrorist group that is top secret is just as bad as the terrorists paying for the information. The bad guys still have the information. That means people will die.

However, it does not appear Skye actually gave Miles the information.

Skye claimed she only communicated with Miles, once after she joined SHIELD and before SHIELD’s attempt to arrest him. The direct support to Miles to help him escape arguably was providing aid and comfort to an international state enemy at the moment of his performance to avoid capture. This would definitely be more than an innocent message like Cramer, because Skye knew that Miles had hacked the information that had caused Chan to be captured. Moreover, these actions show Skye’s intent to betray not just SHIELD, but the United States.

Epilog: Thanks for Mentioning the Constitution

It was good to hear Miles say his rights were being violated after being arrested by SHIELD. Skye’s comment that SHIELD did not have time to observe Due Process was an oblique reference to the Public Safety Exception to Miranda Rights. While not a clean explanation, Skye basically justified SHIELD’s actions on the exigency to fly the 8,200 miles from Austin, Texas to Hong Kong to save Chan from Centipede. Time was of the essence to stop greater wrongs from happening.

That being said, SHIELD could still use a lawyer on call to answer these questions (like the ramifications of leaving a prisoner in a foreign country and giving his ill-gotten gains away). Jessica and I are available if the need arises.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

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