Youngjae Lee (Fordham University School of Law) has posted Punishing Disloyalty on SSRN. Here is the abstract:
Despite the special stigma attached to the charge of treason and despite the fact that crimes of espionage and sabotage against the United States attract accusations of disloyalty, infidelity, and betrayal when they are committed by its own citizens, it is mysterious why one’s nationality should be thought to be significant in evaluating one’s culpability. This Article examines the idea of betraying or being disloyal to one’s country as a matter of criminal law by addressing two broad questions: "What does it mean to be disloyal to the country?" and "Is disloyalty morally blameworthy?" In answering the first question, this Article argues that, as a general matter, an American is condemned as a criminal of disloyalty if he or she participates in efforts, either directly or by helping others engaged in such efforts, to directly undermine core institutional resources the United States requires to protect itself or otherwise advance its interests by force. In addressing the second question, this Article asks: Is there a duty not to be disloyal? If so, where does the duty come from, and what exactly is wrong with betraying one’s country? This Article canvasses various arguments for the existence such an obligation and argues that most of the standard accounts fail. This Article further argues that we should reinterpret the wrong of disloyalty crimes as involving not betrayal or disloyalty, but transgression of political boundaries. That is, the relevant wrong here is rooted in the idea of separation of powers between citizens and the state, and we should reconceive crimes of disloyalty as crimes of "political trespass" or "foreign relations vigilantism" and evaluate the moral rights and wrongs of these behaviors accordingly. Thinking of these crimes in this way has the virtue of helping us avoid the confusing and emotional talk of loyalty, patriotism, and fidelity and focus on what is truly at stake, which is power - who has it, what one can do with it, and how its particular allocation and uses are justified.