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A federal statute stands in for the constitutional crime of treason


A symposium entitled "The Future of Treason"—with David Horowitz, Jamie Glazov, Andrew McCarthy (lead prosecutor in the first World Trade Center bombing case), and me, was recently published in this magazine. While I argued (as I have been for years) that the government should have made more use of treason prosecutions (e.g., Hanoi Jane Fonda and Taliban John Walker-Lindh), Mr. McCarthy argued forcefully that given some of the inherent problems in indicting for that crime (which I acknowledged), it was just as efficacious (if not more so) for the Department of Justice to use the federal "seditious conspiracy" statute (18 United States Code, Section 2384) as he had done in the early Nineties. That section provides:


If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. (Emphasis added).


At almost the same time we were having our symposium discussion, federal prosecutors in California announced the indictment of four alleged terrorist plotters. They have been charged with conspiring to kill members of the United States government uniformed services and foreign officials, interference with commerce by means of robbery, conspiracy to possess and discharge firearms in furtherance of crimes of violence, using and carrying a firearm in connection with a crime of violence, aiding and abetting—and "conspiracy to ‘levy war’ against the United States government through terrorism." If the "levy war" language sounds familiar, it’s because similar, but substantively very different, phraseology appears in Article III, Section 3, of the United States Constitution, which defines "treason": "Treason against the United States shall consist only in levying war against them, or, in adhering to their enemies, giving them aid and comfort."  * * *

 Because of the "levy war" similarity, there has been some confusion since the indictment came down about whether the defendants have been charged with treason, and, if not, what the government must prove in order to convict the four.

When the United States Court of Appeals in Mr. McCarthy’s "blind sheik" case upheld the defendants’ convictions, it understood very well how treason and seditious conspiracy differ and, thus, what is (and is not) needed for a seditious conspiracy conviction.

Essentially, the "blind sheik" defendants had argued that for the government to convict for seditious conspiracy it had to prove the "conspiracy to levy war" count of the indictment by the two-witness proof required by the Treason Clause of the United States Constitution.

The Court of Appeals ruled that the Treason Clause did not apply to the seditious conspiracy prosecution because the latter differed from the former "not only in name and associated stigma, but also in its essential elements and punishment."

To begin with, while treason carries considerable historical baggage that might put off modern juries (e.g., immolation, drawing-and-quartering), seditious conspiracy does not.

Second, while conviction of treason requires two-witness proof, seditious conspiracy does not.

Third, while a treason conviction can be punishable by death, a seditious conspiracy sentence can not be greater than twenty years.

Fourth, while the crime of treason contains two kinds of violation—levying war, and giving aid and comfort—seditious conspiracy contains at least a dozen.

Fifth, while treason can be committed by a single person (e.g., Fonda, Walker-Lindh), seditious conspiracy requires "two or more persons."

So much for any contention that treason and seditious conspiracy are, in essence, the same crime.

That leaves the "conspiracy" part of the crime to consider. To prove a federal conspiracy, the government need only prove an agreement between at least two people to commit a federal crime, and that any one of them performed an act—even a perfectly legal act—in furtherance of that agreement. Once there’s an appropriate agreement and an act, there has been a consummated conspiracy. Nothing more need happen for a jury to convict.

The indictment charges that the four defendants "did knowingly, willfully, and unlawfully combine, conspire, confederate, and agree together . . . to levy a war against the Government of the United States through terrorism, and to oppose by force the authority thereof," it proceeds to elaborate the nature and scope of that agreement, and to allege no less than twenty-nine overt acts (any one of which would be sufficient) done in furtherance of the conspiracy.

Where, then, does that leave Messrs. James, Washington, Patterson and Samana on the seditious conspiracy count of the indictment? The short answer is, dead in the water—if the government can prove that the four agreed to commit terrorism, including murder, by such alleged conduct as surveillance of military targets, domestic synagogues and Israeli targets; procurement of weapons and firearms training; and gas station armed robberies to obtain funds; and if the government can prove such overt acts as recruitment, research, robbery, weapons purchase, and preparation of a hit list. Then, the four will be convicted, just as was the "blind sheik" and his cohort a decade ago.

Based on the indictment’s specificity as to both agreement and overt act, it seems certain that the government will be able to convict—or, if the defendants are smarter than they have been so far, they will plead out.

Given that one way or the other the defendants are going down for the count, it is fitting to close on one allegation of the indictment (paragraph 11, b): "In or about December 2004, defendant Washington advised defendant James that he was prepared to follow defendant James to victory or martyrdom."

There is no doubt which it will be for all four of the defendants—and for the many others who, thanks to the seditious conspiracy statute, will follow them into America’s federal prisons, not to emerge, if at all, for a very long time.