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I am writing a historical fantasy story, and have come to a rather sticky in-universe legal situation. My main characters are the crew of a US Navy seaplane from WWII, and they've ended up in a new world of similar tech level. Now, they're still loyal service members of their nation, but they don't have any knowledge of this place they've been dumped into nor any contact with the United States but they have made contact with the local's military.

The major problem the bomber's crew has is that they have no money or identification here, aliens in more then one sense of the word. They can't refuel their plane here without committing a crime and stealing the fuel, and spare parts are limited to the few onboard that they were carrying on their bombing run.

One theory for their next course of action would possibly have the crew make an alliance of sorts with the local military, possibly agreeing to trade some knowledge and/or the services of their aircraft to the locals in exchange for fuel, parts, identification, and possibly cash to sustain themselves and their aircraft.

So, what I'm wondering is if they can somehow pull this off without committing treason against the USA by military law, or are they in a real Morten's Fork situation here?

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    Welcome to LSE. This has to be one of the more unusual first questions! – Just a guy Sep 1 '20 at 17:00
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It's only treason if they wage war with the US

Treason is unique in American law: It is the only crime that is defined in the Constitution. It is made a crime in the US code (18 USC §2381) not "military law."

Following the Constitution's Treason Clause, USC §2381 has two prongs. To be guilty of treason, one must either:

  1. Levy war against the United States; or
  2. Adhere to its enemies, giving them aid or comfort.

Since this country is not at war with the US, the first prong does not apply. "Enemies" has been interpreted narrowly, to mean only enemies in a real war. Thus, one can only be guilty of treason in the US during wartime, so the second prong does not apply either.

The Founders defined treason narrowly and put it in the Constitution to de-politicize it. According to James Madison (in Federalist 43), in the past, “violent factions” had often used “new-fangled and artificial" definitions of treason to “wreck their alternate malignity on each other…” To keep from repeating this sorry history, the Constitution “opposed a barrier to this peculiar danger,” by defining what constituted treason and specifying how it was to be proved.

Exactly how narrowly treason is defined can be seen in the Supreme Court's 1807 decision in Ex Parte Bollman. This case arose out of the Burr Conspiracy, Aaron Burr's plan to carve a new country out of the US. Bollman was charged with conspiring with Burr. The Court ordered Bollman released. In his opinion, John Marshall explained why:

However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses.

If you want to read more about treason, here's a short article by a law professor, and here's a nice overview of the topic from the Congressional Quarterly.

Denationalization: Another problem they probably don't have to worry about

If you are looking for reasons for these patriots to worry about joining the military of another country, treason is not the only legal danger they face. Volunteering in the armed services in another country's military can also lead to losing one's citizenship, even if that country is not at war with the US. During WWII, loss of citizenship was controlled by §401 of the Nationality Act of 1940. Under §401(c) US citizens could serve in foreign armed services if "expressly authorized by the laws of the US." Otherwise, the law only provided for the denationalization of any citizen who served in a foreign military in which he had or acquired nationality. The 1940 Act said nothing about serving as an officer or intending to renounce American citizenship. Those provisions were added in later Acts.

How to apply real law to an imaginary world

You will have to stretch the words of the Nationality Act of 1940 and the "Neutrality Acts* to get them to apply to this imagined situation. Instead of parsing these texts ever more finely in the hope you can figure out how to apply them to a situation those who passed these laws did not (and probably could not) imagine, a simpler and more direct approach would be to interpret these laws light of their purpose. The purpose of §401 of the Nationality Act is clear: If an American citizen shifts (or splits) his allegiance from the US to another country, he will lose his citizenship. §401 lists various acts that will be taken as evidence of shifting (or splitting) allegiance. So unless your guys do things that show they have changed their allegiance, they will be fine.

Keeping your guys on the right side of the Neutrality Acts might be a little trickier. Their purpose is simple: To keep anyone from dragging US into war before Congress declares it by making sure every American remains neutral between "belligerents." Unless you've built this world in such a way that the US could be easily dragged into a war on it, it seems your guys won't violate the purpose of the Neutrality Acts. (The Neutrality Acts are about "belligerents," so unless there's a war in this other world, the Acts probably don't apply anyway.)

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    Thank you for the welcome and all the information! Do you think there's any way they could avoid the possibility of denationalization? I know some US units were under the command of the British in WWII, or was that different in concept? – Jazzyamx Sep 2 '20 at 0:43
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    @phoog, So just serving as an officer is enough? Could they set themselves up as an aircraft and crew 'on loan' to the local military, with intent to return to the USN when the opportunity presented itself? (kinda a mini Eagle Squadron?) – Jazzyamx Sep 2 '20 at 5:51
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    @Justaguy, Is there any way they could act as sort of a liaison unit from the USN , maintaining officer status and nationality? – Jazzyamx Sep 2 '20 at 9:10
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    @Jazzyamx To clarify: Under the Nationality Act of 1940, which applied during WWII, they would only lose their US citizenship for serving in a foreign military if they later became citizens of the other country. They might also face problems under the Neutrality Acts, but I doubt those Acts cover worlds nobody knows about. So serving as officers, etc. does not matter. – Just a guy Sep 4 '20 at 5:14
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    @Justaguy--Perfectly, thank you! As long as they stay Foreign Nationals, they're golden. – Jazzyamx Sep 4 '20 at 6:10
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No

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

These people are not enemies of the United States.

Of course, revealing classified information is a different crime.

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