WHAT TO DO WITH TALIBAN FIGHTER JOHN WALKER?

 (Published December 6, 2001)

"Everyone loves him," said his mom. "He's a really good boy, a really sweet boy."

Marilyn Walker was referring to her son, John Phillip Walker - aka Abdul Hamid - most recently seen on international television wounded, starved, and filthy from his several-day stay in the basement of a muddy makeshift prison in Northwest Afghanistan.

Mr. Hamid, an American citizen fighting on the side of the Taliban (and almost certainly the Al Qaeda forces of Osama bin Laden) was flushed out of his hideout through the application of freezing water, which wrote the final chapter to the prisoner revolt at the Qalai Janghi fortress.

During that revolt, not only were fighters of our Northern Alliance allies killed, so too was an American intelligence operative of the Central Intelligence Agency. Taken prisoner by the anti-Taliban forces, Walker-Hamid openly admitted sympathy for the terrorist bombing of the U.S.S. Cole, and the attacks on the World Trade Center and the Pentagon.

Tuesday, when at his press conference Secretary of Defense Donald Rumsfeld was asked about what can be done with Taliban John, the secretary did not provide an answer. Although the answers are clear, they are limited.

To begin with, it's easy to say what isn't going to be done with Walker-Hamid. He isn't going to put before any United States Military Tribunal, because the jurisdiction of those bodies, if ever they are convened, does not extend to American citizens. He will not be court-martialed, because he served in the wrong army. Nor will he be charged with treason, for two reasons. First, the "levying war" against the United States prong of the crime of treason is problematic, because in fighting for the Taliban against the Northern Alliance it is uncertain that Walker-Hamid was actually fighting against the United States. Second, while the "adhering to their enemies, giving them aid and comfort" prong may be easier to prove than "levying war," the fact is that all American administrations since World War II have had an aversion to indicting for the "mother of all crimes," and no one has been charged with treason since the end of World War II (note the Rosenberg case, which was brought under the Espionage Act), Indeed, if Jane Fonda was not charged with treason in 1972 after her successful propaganda efforts on behalf of the Communist North Vietnamese, Walker-Hamid certainly will not be indicted for treason.

That leaves Walker-Hamid facing [at least] two possible punishments.

One is under American criminal law. For example, an American citizen is subject to the judicial system of the United States for acts committed abroad if there is a connection - a "nexus " - to this country. Thus, for example, if an American citizen murders another American in our embassy in Prague (which is considered United States territory), the alleged killer can be tried in an American court. We even extradited to the United States bombers of the American embassies in Kenya and Tanzania, and they weren't even American citizens. Equally, Jane Fonda could have been indicted in an American court for her conduct in wartime North Vietnam, given her acts' effect on the United States.

So let us recall the events surrounding Walker-Hamid's conduct in Afghanistan. He fought for the Taliban, was captured by the Northern Alliance, and arguably took part in the Qalai Janghi prison uprising where an American CIA agent was killed. Depending on the facts, under American criminal law Walker-Hamid might have been a principal in that killing, he might have been an aider and abettor, and/or a conspirator. If there are facts supporting any of these roles, Walker-Hamid is chargeable in a United States court.

In addition, his American citizenship is at risk.

Under at least three sections of the Nationality Act, Walker-Hamid could lose his American citizenship: voluntarily (a question for the trier of fact) declaring allegiance to a foreign state, merely serving in a post for which such a declaration is required (even without making a declaration), or serving in the armed forces of a foreign state if it is engaged in hostilities against the United States or by serving as an officer or noncommissioned officer in the armed forces of a foreign state.

Loss of citizenship is serious business. But if Walker-Hamid were to be convicted of having a role in the murder of our CIA agent, he might have to worry about losing more than just his citizenship.