The government has just announced it knows some 100 American citizens possessing United States passports have joined ISIL/ISIS/IS in Syria and Iraq. Apparently, there is an ongoing discussion about what to do about these people, who are presumably known to our intelligence and other agencies, if they return to this country.
There are two answers.
As enemy combatants, despite their American citizenship, they can and should be killed--if possible, after squeezing them for whatever intelligence they can provide.
On the other hand, if this gutless administration persists in treating them not as enemy combatants but instead as mere criminals, right now, tomorrow, every one of them should be indicted for treason.
There are three crimes expressly mentioned in the Constitution, only one of which is actually defined. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy, although neither is actually defined.
However, Article III, Section 3, clearly provides that: "Treason against the United States, shall consist only in levying War against them, 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." [My emphasis.] The federal treason statute tracks the constitutional provision.
As explained in the Holzers' book "Aid and Comfort": Jane Fonda in North Vietnam (www.amazon.com), the Supreme Court of the United States, has interpreted the constitutional and statutory crime of treason to require four elements for indictment and conviction: (1) an intent to betray the United States by "levying" or "adhering," (2) an overt act, (3) proved by two witnesses, (4) "providing aid and comfort."
In Hanoi Jane's case, she traveled to North Vietnam during hostilities, made broadcasts (tapes of which were relentlessly played to our POWs), held press conferences, provided photo ops for the Communists, attacked the United States and its leaders on Radio Hanoi, exploited American prisoners of war with whom she met, fraternized with North Vietnamese military and civilian leaders — and was thanked for her efforts by grateful, top level Communist leaders. This is why "Aid and Comfort" concludes that, given the law of treason and given Fonda’s conduct, there was more than sufficient evidence to support an indictment and conviction for treason.
Putting aside the "levying" prong of the crime--though the beheading of two American citizens would qualify, as would terrorist use of force against American air and ground forces--and focusing solely on the "adhering" prong, it is clear that the recent two decapitations--overt acts--of American journalists conducted by co-fighters of the American terrorists constitute "adhering to the enemy, giving aid and comfort." Two witnesses? Thanks to social media, the whole world is witness.
That leaves the most essential element of the crime of treason, a question of fact for a jury in the Fonda situation and in the case of the American terrorists: intent.
Only in rare cases can criminal intent be proved through direct evidence (for example, from an admission by the defendant). Because intent is a state of mind, almost always it must be proved indirectly. In the crime of treason, the Supreme Court of the United States has consistently ruled that the requisite element of intent can be inferred from a defendant’s overt acts. In Fonda’s case, a jury could have concluded from all that she said and did that her intent was to betray (i.e., harm) the United States.
Let's look at Edward Snowden. As it was with Tokyo Rose and Axis Sally during World War II, Hanoi Jane in Vietnam, and now Snowden hiding out in Russia, the touchstone of a successful treason prosecution--under either the Constitution or federal statute--is "intent." Juries found that the two women had it, and one could have found that Fonda did. Also Snowden.
So, too, a jury could find the American terrorists in Syria and Iraq are traitors and sentence them to death. More likely, pending treason indictments would at least keep them out of the United States.
Of our two remedies, however, killing them is more appropriate, let alone satisfying. If an Obamadrone couldn't do the job, surely our clandestine forces would be happy to take a stab at it.