Q: Can American Taliban guerrilla John Walker be convicted of treason?
Yes: there is enough evidence to conclude Walker gave aid and comfort to an enemy of the United States.
A few weeks ago I wrote that the presidential administrations since World War II have had an aversion to issuing indictments for treason (see Fair Comment, Jan. 7). For example, some of the most notorious American spies for the Soviet Union have not been charged with treason: Julius and Ethel Rosenberg, the John A. Walker Jr.-Jerry 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 American Taliban fighter John Phillip Walker would not be indicted for that "mother of all crimes." All the more so, I thought, since early in the case President George W. Bush had expressed sympathy for Walker. Now, because the president may not be feeling so charitable, a treason indictment might be -- and should be -- in the offing.
Although all along many pundits have predicted that Walker can't be convicted of treason -- a chorus that soon may build to a crescendo, especially among those who are soft on his conduct -- the law and the facts of the Walker case are otherwise.
Let's begin with the law. There are only three crimes mentioned specifically in the U.S 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, first paragraph).
The meaning of the "levying war" prong of the crime has not been interpreted by the U.S. 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 20th 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 U.S. Courts of Appeal. Together with the other three Supreme Court cases, 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. A U.S. citizen was charged with aiding a Nazi saboteur who was tried and convicted by a military tribunal. Although Anthony Cramer was convicted by a trial court and his conviction upheld by a U.S. Court of Appeals, the Supreme Court reversed those rulings 5-4 because the majority and the dissent disagreed about whether Cramer's conduct actually had 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. Hans Max Haupt was convicted, his conviction upheld on appeal and affirmed by the Supreme Court.
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 prisoners of war (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 interpreted the "adhering to their enemies, giving aid and comfort" language of Article III as requiring a treason prosecutor to prove four elements 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. …