A Native Son May Elude Treason Charges

Chief Justice John Marshall once said that treason is the crime that most can “excite and agitate the passions of men.” The public outcry after the capture of John Walker Lindh, an American who fought with the Taliban, shows that Marshall was right. Treason remains our ultimate form of betrayal, an offense that is felt personally and intimately by every other citizen.

The Constitution defines treason as “levying war against [the United States] or adhering to their enemies, giving them aid and comfort.” The framers also defined the standard of proof for such a heinous crime: “the testimony of two witnesses to the same overt act or on confession in open court.”

The 20-year-old Californian who goes by the last name of Walker may seem to have few defenses against a treason charge. It is bad enough to be captured with a group of Taliban and Al Qaeda fanatics, but Walker then proceeded to make statements to the media that admitted to training with Al Qaeda and fighting with the Taliban. All such statements are likely admissible in a court of law.

Treason, however, may be the easiest crime to understand and the most difficult to prove.

Any trial would require two credible witnesses. Having reformed Taliban fanatics swear on the Koran to tell the truth could leave jurors skeptical, if not openly snickering. Then there is the problem of the status of this “war.” Despite what the Bush administration calls this conflict, a court would have to consider whether there can be treason if Congress has not declared war.

There also is a problem of timing. Walker could argue that he took up arms before any commencement of hostilities and did not actively engage in combat against U.S. forces. He has told reporters that he joined a military unit to fight against India in the Kashmir region long before the Sept. 11 attacks and spent six months in Afghanistan before being taken prisoner at Kunduz. He could argue that many Taliban fighters did not agree with the war and defected when given the chance. Moreover, many of those who surrendered are now fighting with the United States or its allies.

Any defense of Walker also may cite a long history of Americans fighting in other countries for religious, cultural or political reasons. Americans fought in the French Revolution in the 18th century, and in the 20th century they fought with various foreign detachments including the Israelis and with the republican forces against Gen. Francisco Franco in Spain. Walker could claim that he fought for his religion, not against the United States.

Historically, treason cases have turned on such complications. In the 1807 trial of Aaron Burr, the former vice president was acquitted despite compelling evidence that he was raising an army against the United States. The government’s case collapsed over a lack of direct proof and witness testimony. Even Iva Ikuko Toguri d’Aquino, the infamous “Tokyo Rose,” proved more pathetic than menacing in her 1949 treason trial. She insisted that she was forced to make propaganda radio broadcasts and lived under constant fear; she served only seven years after her conviction and later was pardoned.

Treason remains something of a paradox in American law. Our legal system abhors this crime above all others but also reserves the charge for the narrowest category of criminal.

It is ironic that Walker may return like some constitutional prodigal son to claim the protections of a system that he abandoned. He may prove one of our greatest challenges in administering justice for those who appear least worthy to receive it.

*

Jonathan Turley, a professor at George Washington University Law School, has represented espionage defendants in both the federal and military courts.