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The definition of treason is a thorny problem for any free society. Politics in a representative democracy have been understood in modern times to require a loyal opposition, which means that the concept cannot be too expansive or debate and the life of the mind generally will be chilled. By contrast, a totalitarian state can simply designate all opposition to the philosophy of the ruling party or the policies of the leader as treason. However, in any state, in order for the executive branch to be able to fulfill its duty to protect the polity, it must retain the possibility of pursuing criminal sanctions against domestic enemies of the existing order, at least to the extent they use violence.

It is generally understood that treason is a unique crime threatening all citizens and calls for the harshest penalties, typically capital punishment. In England before the Glorious Revolution of 1688 (which ejected the House of Stuart and made the English government truly limited), treason carried a penalty of beheading for the nobility and hanging, drawing and quartering for others, a process vividly depicted towards the end of the 1995 film Braveheart. The English executed traitors as late as the mid-20th century, but by that time were content to rely merely on hanging.

The U. S. Constitution defines treason as "leying war against the United States, or in adhering to their enemies, giving them aid and comfort." It also (copying an earlier English statute, the Statute of Edward III) requires that no conviction shall be had for this crime in the absence of the sworn testimony of two witnesses. Treason prosecutions in the modern U. S. are exceedingly rare; although an al-Qaeda operative born in California was recently indicted, other U. S. citizens who have fought in Afghanistan on the Taliban side, notably John Walker Lindh and Yasser Esam Hamdi, were tried on lesser charges, and Hamdi is now a free man. This is in part because there were no treason prosecutions arising from the Cold War; even the Rosenbergs were tried and sentenced to death for espionage, the selling of secrets, perhaps because the Cold War was never formally declared by Congress.