The Text Behind Treason

CBSNews.com Legal Analyst Andrew Cohen analyzes one possible fate of American-born John Walker who claims he fought with the Taliban.

The Founding Fathers thought so much of treason, or so little of it, that they included it directly into the Constitution. None of this waiting-around-for-the-Bill-of-Rights-stuff for a heinous crime like treason, no sir, especially in a country so new and so full of folks who were, after all, treasonous to the British Empire.

So it's right there, in Article III, right after the clause about impeachment: 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.

Fortunately, there has been no great need by prosecutors over the past 214 or so years to prosecute citizens for treason. The cases pop up, as you would expect, in times of national stress, like during the Whiskey Rebellion in the 18th Century and the Civil War in the 19th Century and the First and Second World Wars and the Cold War during the last century. So it says something about the times in which we live since Sept. 11 that there is talk once more of a treason prosecution.

Federal officials, both military and civilian, now are looking into the curious case of John Walker, the American-born Talib who was captured after a prison riot in Mazar-e-Sharif, to see whether the facts and the law would support a treason prosecution against him. In addition to these legal considerations, I suspect political calculations also will play a role in determining what the feds decide to do with Walker.

Do authorities want to try to make a harsh example of him? Would it deter other Americans from engaging in such conduct? Or do authorities want to give Walker a bit of break since there doesn't seem to be a mass rush by Americans to enlist with Uncle Osama? Would we look better or worse to the world if we treated Walker with sympathy rather than a full-bore prosecution? I'll let the policiticians and military officials make those tough calls.

Legally-speaking, however, it's impossible to tell right now whether prosecutors have a good treason case against Walker. We simply don't know enough about what Walker did and did not do during his stint in Afghanistan to make a reasonable prediction about how such a case would turn out. And, as is usually the case when it comes to intermittant prosecutions for specialized cirmes, none of the few Supreme Court cases on treason address many of the specific issues presented here.

But the Supreme Court has given us some guidance which is useful here. It has consistently declared that engaging in actual, physical hostilities against the United States constitutes treason and that such conduct does not have to take place within the United States for the country to prosecute. This are, likely, would be the first area officials investigate. Did Walker fire on American troops during the prison riot? Did he fire on the Northern Alliance? Did he fire on any of the American planes which have wrought so much damage on the Taliban and Al Qaeda? Was he an active participant in the war or merely a bystander who found himself in absolutely the wrong place at absolutely the wrong time?

Even if Walker never fired a shot in anger, however, even if he were merely a supplier of Taliban food and clothing, he arguably could be deemed by a judge or jury to be "adhering to the enemy" under the Constitutitional definition of the crime. In a 1947 case, the Supreme Court found that a father who had purchased a car for his son, a spy and saboteur, had given aid and comfort to the enemy even though there was some doubt about whether the father knew what his son was up to. Since it is hard to fathom that Walker didn't know what his fellow Talibs were up to, this old case-- and several others before it-- probably give prosecutors a great deal of hope should they decide to pursue a treason claim.

But the feds shouldn't get too cocky. The burden for such a case is high-- on purpose, I suspect, those Founding Fathers were no dummies-- and the government would have to come to the table with an awful lot of evidence proving that Walker committed the "overt act" necessary for a conviction. What would that act be? And, absent a confession by Walker, which "two witnesses" would be willing and able to testify on behalf of the United States in a trial of Walker? Can you imagine federal prosecutors calling some member of Al Qaeda to turn "state's evidence" against an American? I cannot either. And can you imagine what a good defense attorney will do in court with any "confession" wrung out of Walker by Special Forces troops with the way Walker looked on television earlier this week? I cannot either.
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Walker's citizenship, whatever it may be, shouldn't be relevant to the ongoing analysis by authorities. If he is an American citizen, prosecutors clearly are not barred from pursuing a treason claim against him. But even if Walker turns out to be a dual citizen-- say, of the States and Yemen or Pakistan, a 1952 Supreme Court treason case holds that dual citizens also can be on the hook for treason. And, of course, if it turns out that Walker is not, in fact a US citizen, there is always the option of trying him before one of the President's military tribunals, which theoretically apply on to non-citizens. In this sense, Walker is damned if he is and damned if he isn't.

If a treason case were brought against Walker, a jury almost certainly would decide his fate. But first some unanswered legal questions would need to be answered by the federal courts. Is a Congressional Declaratin of War necessary to indict for treason based upon the "levying War" provision of Article III? Probably not. Can foreign nationals serve as the two necessary witnesses for the prosecution? Probably. But what if those witnesses were given immunity by prosecutors? Would judges still accept their testimony? And how will judges and juries react to a defense by Walker that he was forced into service for the Taliban? After all, you don't need to be a legal scholar or a geopolitical expert to know that the Taliban are, or were, ready, willing and able to force people to do their bidding.

So, like just about everything else connected with the aftermath of Sept. 11, the story of John Walker and Article III's treason clause is quite complicated. And quite likely won't be resolved anytime soon.

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