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In the Twentieth Century, eight treason cases arising out of World War II established four elements for conviction on the "aid and comfort" prong of the crime: (1) intention to betray the United States, (2) manifested in an overt act, (3) testified to by two witnesses, (4) giving aid and comfort to the enemy. (A declaration of war is unnecessary; mere hostilities are enough). This means that if Walker's conduct may have satisfied these requirements, he can be indicted; if a jury agrees that his conduct did satisfy them, he can be convicted.


What we know from Walker himself is that he trained at two al-Qaeda camps, marched some 100 miles with al-Qaeda fighters, participated in the prison revolt where he was wounded, was close to the killing of Mike Spann, and claimed to know that biological attacks would occur soon after Ramadan.


There is no doubt that these acts - or even any one or a combination of them - would allow a jury to conclude they proved the overt act requirement for treason. In the Haupt treason case, the father helping his Nazi saboteur son obtain reemployment at a sensitive defense plant, giving his son a place to live, and purchasing a car for him, were held sufficient overt acts for treason. In the World War II broadcast cases, merely making the radio broadcasts were sufficient overt acts. And in the Kawakita treason case, abusing American POWs was sufficient. In other words, virtually any act can be construed by a jury as an overt act sufficient to satisfy the government's burden of proof in a treason prosecution.


Proving Walker's intent would not be a problem, since the law allows it to be inferred from his act(s). As the Supreme Court said in the Chandler treason case, "In the law of treason . . . every person is assumed to intend the natural consequences that he himself knows will result from his acts."


As to proving "aid and comfort," in Haupt the Court held that the jury had a right to conclude that the father's efforts on behalf of his son - the job, the automobile, the shelter - aided the Nazis. In each of the broadcast cases, the Court reached the same conclusion. So, too, Kawakita's abuse of American POWs. There is more than enough evidence for a jury to conclude that Walker's act(s) provided aid and comfort to the enemy.


That leaves two-witness proof. Among the Northern Alliance troops, captured Taliban and al-Qaeda fighters, and American personnel, surely prosecutors can produce two witnesses to at least one overt act by Walker. Like the questions of Walker's intent, his commission of an overt act(s), and that act(s) giving the enemy aid and comfort, two-witness proof is also a question for the jury.


Thus, in light of the facts of the Walker case and the law of treason, there is no doubt that, just as he can (and ought to) be indicted for treason, he can (and ought to) be convicted.


America's national security will be strengthened by Walker's indictment - and even more by his conviction.