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(Published December 12, 2001)



At almost the same time that Taliban fighter John Walker was being interrogated in Afghanistan by CIA agents, I had just finished correcting the page proofs of my soon-to-be-published book dealing with whether Jane Fonda committed treason when she traveled to Hanoi in 1972. Accordingly, I was appalled when the Walker story broke and I heard many in the media, and even important public officials, revealing how little they knew about this "mother of all crimes." Indeed, only a few nights ago when Larry King asked Joe Biden about treason, all the Senator could say was that it was "levying war against the United States" (adequate), and then mutter something about "aiding the enemy" (woefully inadequate). With a national debate now beginning about what should be done with Walker, it is essential that Americans understand exactly what constitutes the modern crime of treason.


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, I shall comment only 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, and therefore they are much more relevant to Fonda than to Walker. The other three cases, decided by the Supreme Court, laid the 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, 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 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, and if a jury agrees that his conduct did satisfy them, he can be convicted.


What our public officials - and the public in general - ought to be asking themselves in the ongoing debate about John Walker is this: Could a grand jury believe that Walker, an American citizen - because of his training by Al Qaeda and his combat service with them (let alone his participation in the prison revolt, and his proximity to the murder of American CIA agent Spann) - (1) intended to betray the United States, (2) committed at least one overt act to that end, (3) to which two witnesses could testify, (4) and in so acting "adhered to the enemy, giving aid and comfort"? And if a grand jury did indict Walker, could a trial jury convict?


To ask the questions is to answer them.