GOVERNMENT WRONG NOT TO HAVE INDICTED TALIBAN JOHN FOR TREASON

Several weeks ago I wrote that all American administrations since World War II have had an aversion to indicting for treason. For example, some of the most notorious American spies for the Soviet Union have not been charged with treason: the Rosenbergs, the Walker-Whitworth ring, Aldrich Ames, Robert Hanssen, Richard W. Miller. There were others, including Larry Wu-Tai Chin, who spied for China. Accordingly, I opined that Taliban John Walker would not be indicted for that "mother of all crimes." All the more so, I thought, because since early in the case President Bush had expressed sympathy for Walker. Now, unfortunately, I have been proved correct. President Bush, despite his recent tough talk about how John Walker will have to suffer the consequences of his conduct, has opted not to have Taliban John charged with treason.

Apparently, the president and/or his advisors believe either what many pundits have been predicting - that Walker can't be convicted of treason - and/or they have allowed political considerations to drive the decision. Legally, at least, Walker could have been indicted and convicted of treason, as the law and the facts of the Walker case make plain.

Let's begin with the law.

There are only three crimes mentioned in the Constitution - piracy, counterfeiting, and treason - the latter being the only one defined: "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." (Article III, Section 3, paragraph 1).

The meaning of the "levying war" prong of the crime has not been interpreted by the Supreme Court in modern times. For that reason, and because the prong's history suggests that a prosecution of Walker for levying war would be problematic, we need to focus on the "aid and comfort" prong - which is easier to prove.

In the Twentieth Century, only eight treason cases - all arising out of World War II - were decided by federal appellate courts. Five of them were "broadcast" cases (four for aiding the Germans, one for aiding the Japanese) decided by United States Courts of Appeal. Together with the other three cases, decided by the Supreme Court of the United States, the eight laid the modern ground rules for conviction of treason on the "aid and comfort" prong of the crime.

The first Supreme Court case was Cramer v. United States. An American citizen was charged with aiding a Nazi saboteur who was tried and convicted by a Military Tribunal. Although Cramer was convicted by a trial court and his conviction upheld by a Court of Appeals, the Supreme Court reversed, 5-4, because the majority and the dissent disagreed about whether Cramer's conduct had actually provided "aid and comfort" to the Nazis.

Next came Haupt v. United States, where the American citizen father of one of the saboteurs was charged with aiding his own son. Haupt, Sr., was convicted, his conviction upheld on appeal, and the Supreme Court affirmed.

The last of the Supreme Court's trilogy of treason cases was Kawakita v. United States. The defendant, another American citizen, became a straw boss over American POWs in Japan, torturing and otherwise brutalizing them. His treason conviction on the "aid and comfort" prong was upheld on appeal, and affirmed by the Supreme Court.

In these three cases, and in the five broadcast cases, the Supreme Court of the United States interpreted the "adhering to their enemies, giving aid and comfort" language of Article III as requiring a treason prosecutor to prove four elements in order to get a conviction: (1) the defendant's intention to betray the United States, (2) manifested in an overt act, (3) testified to by two witnesses, (4) which gave aid and comfort to the enemy. (A declaration of war is unnecessary; mere hostilities are enough). These are all jury questions. This means that if there is reason to believe the accused's conduct may have satisfied these four proof requirements, he can be indicted - as Walker should have been - and if a jury agrees that his conduct did satisfy them, he can be convicted.

This is the law of treason and, despite what some have tried to argue, there is nothing arcane or complicated about it. Whether a conviction can be had from a jury in a treason case depends, then, on the facts. What are the known facts of the Walker case, to which the law of treason must be applied?

What we know from Walker himself so far - and the government doubtless knows much more from its several weeks of interrogations- is that he trained in two al-Qaeda terrorist camps, he marched some 100 miles with al-Qaeda fighters through Northern Afghanistan, he participated in the Qala Jangi prison revolt where he was wounded, he was in close proximity to the killing of American CIA agent Mike Spann, and he claimed to know that biological terrorist attacks would occur soon after the end of Ramadan.

There is no doubt that these acts - or even any one or a combination of them - would allow a jury to conclude they satisfied the overt act requirement for treason. Indeed, in the Haupt case the father helping his Nazi saboteur son obtain reemployment at a sensitive defense plant, giving his son a place to live, and purchasing a car for him, were held sufficient overt acts for treason. In the World War II broadcast cases, merely making the radio broadcasts were sufficient overt acts. And in the Kawakita case, abusing American prisoners of war was sufficient. In other words, according to the Supreme Court's rulings in the eight World War II treasons cases, virtually any act against the United States can be construed by a jury as an overt act sufficient to satisfy the government's burden of proof in a treason prosecution.

Since the law allows Walker's intent to betray the United States to be inferred from his act(s), just as a jury could find that Walker committed the requisite overt act, a jury could easily conclude that Walker possessed the requisite treasonous intent. As the Supreme Court said in the Chandler case, "In the law of treason . . . every person is assumed to intend the natural consequences that he himself knows will result from his acts. And, in this case, if [the jury finds that] Chandler committed a voluntary act or acts which actually gave aid and comfort to the enemy and at that time he knew, or with his knowledge had reason to know that the natural consequence of his act would be that aid and comfort would result to the enemy in the conduct of its war against the United States, [the jury] would be warranted in finding from the commission of the acts themselves that he intended to give aid and comfort to Germany, that he intended to adhere to the enemy . . . . Motive cannot negative an intent to betray. . . . Where a person has an intent to bring about a result which the law seeks to prevent, his motive is immaterial." This principle - the distinction between "motive" and "intent" - wholly disposes of every conceivable "poor confused boy"-type defense Walker's parents, lawyers, and supporters doubtless would have contrived. Walker's motives would have beend irrelevant!

As to "aid and comfort," in the Haupt case the Supreme Court held that the jury had a right to conclude that Haupt Sr.'s efforts on behalf of his son - the job, the automobile, the shelter - aided the Nazis. And in each of the World War II broadcast cases, the Supreme Court reached the same conclusion - as it did concerning Kawakita's abuse of American prisoners of war in Japan. Thus, there is more than enough evidence from which a jury could have concluded that Walker's act(s) - training with terrorists, marching with terrorists, fighting with terrorists, revolting with terrorists, trying to escape with terrorists, and perhaps even killing an American with terrorists - provided aid and comfort to the enemy of the United States.

That leaves the requirement that the overt act(s) have to be testified to by two witnesses. Among all of the Northern Alliance troops, captured Afghan Taliban and al-Qaeda fighters, and American civilian and military personnel, surely the government can produce two witnesses to at least one overt act by Walker. Surely among the many who knew Walker, especially at the Qala Jangi prison, there would have been two who knew of at least one of his acts, if not more. Like the questions of Walker's intent, his commission of an overt act(s), and that act(s) giving the enemy aid and comfort, two-witness proof would also have been a question for the jury.

Thus, in light of the law of treason and the facts of the Walker case, there is no doubt that he could have been indicted - and convicted! - of treason against the United States of America.

Our national security is worsened for his not having been.