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(Published January 9, 2002)




While there has been considerable speculative discussion of various charges against John Walker- now being held on the American vessel Bataan in the Arabian Sea - an indictable offense that has been virtually overlooked is the one that may, in the end, cause Taliban John the most trouble. Especially if the Bush Administration doesn't indict Walker for treason.


Title 10, Section 904, of the United States Code (Uniform Code of Military Justice) is entitled "Aiding the Enemy." The section provides that: "Any person who (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) . . . knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct."


Even though this statute has not been construed much by the courts, let alone by the Supreme Court of the United States, arguably it's applicable to Walker's conduct.


We know that he trained with al-Qaeda in at least two terrorist camps, that he admitted knowing the camps were funded by bin Laden, that he fought with al-Qaeda, that he participated in two prison uprisings involving US forces, that he was in proximity to the murder of CIA agent Mike Spann, and that he claimed to have knowledge of a post-Ramadan biological attack on the United States. And this is just what we know; doubtless, American authorities by now know much more.


Turncoat Marine Bobby Garwood was convicted, in the mid-1980s, of the Section 904 crime by a Marine Corps court martial for his reprehensible conduct with the Viet Cong in South Vietnam. (See United States v. Garwood, 16 MJ 863, NMCMR 1983).


However, there are as yet unanswered questions about using Section 904 against John Walker.


Garwood was an active duty Marine when he committed the acts for which he was later convicted. So, does Section 904 apply to Walker who, though an American citizen, was not at the time of his acts in any United States military service? The answer is probably "yes" for two reasons. First, another federal statute, 10 U.S.C. 802, provides that: "The following persons are subject to" the Uniform Code of Military Justice [which would include Section 904]: . . . (9) Prisoners of war in custody of the Armed Forces. . . ." While Central Command has been characterizing Walker as a "military detainee" (whatever that semantic description is supposed to mean), the fact is that the former al-Qaeda fighter - taken from the field in armed combat by allied forces, and doubtless American troops of one kind or another - is a prisoner of war. Accordingly, Section 802 would seem to apply. Second, Section 904 has been construed as not being limited only to persons subject to the Uniform Code of Military Justice. (See Duncan v. Usher, 23 MJ 29, CMA, 1986).


Can it be argued that al-Qaeda was the "enemy"? Not only can it be argued, it is undeniable.


Can it be argued that Walker aided or attempted to aid al-Qaeda with at least "other things"? If not, what was he doing with them: training, marching, fighting, rebelling, and perhaps even killing, or conspiring to kill, an American?


Can it be argued that Walker knowingly harbored or protected or gave intelligence to al-Qaeda "either directly or indirectly"? As noted, at the very least, he marched, fought, and rebelled with them.


Can it be argued that Walker had "intercourse" with al-Qaeda "either directly or indirectly"? Again, we need only look at Walker's conduct with them.


If any of these questions could be answered affirmatively, federal prosecutors have sufficient evidence to get a Section 904 case against John Walker to a jury.


Could Walker get the death penalty? Yes. The statute expressly provides for it.


Could Walker be tried, not by a court martial, but instead by a military commission? Yes, the statute expressly provides for that forum, and President Bush's Executive Order expressly provides for the creation of military tribunals. However, it's important to understand that if the administration decides to go this route, it would not be violating the Bush Order because federal law - Section 904, pre-existing law - already allows an American citizen to be tried by a military tribunal for the crime of "aiding the enemy." Thus, while Walker could be tried for a Section 904 "aiding the enemy" violation, he could not be tried for any crime (i.e., terrorism) contemplated by the President's Executive Order - although, under Section 904, Walker could be tried by a military commission constituted under that Order.


This assessment of the utility of a Section 904 charge against John Walker should not be allowed to obscure the other possible charges against him, including treason, complicity in the murder of Mike Spann, and providing material support to the enemy - all of which could, and may, be brought against Walker. But in the mix, if there's a sleeper crime to keep an eye out for, it's the charge of "aiding the enemy."