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As the drums beat louder for Taliban John Walker to be charged with treason, it is more important than ever for the American public to understand clearly what elements must be alleged and then proved to indict and convict someone of that constitutional crime.

The necessary element of "intent" can be proved by the actor's own statements, or inferred by the jury from his conduct.

Also a question for the jury is whether the actor's conduct provided "aid and comfort" to the enemy.
Two witnesses must testify to at least one overt act. But what is an "overt act" sufficient to satisfy the constitutional requirement?

Fortunately, as "Aid and Comfort" shows, we have an unambiguous example of overt acts that did sustain a treason indictment and conviction, in the Supreme Court case of Haupt v. United States. Hans Max Haupt was the father of one of the Nazi saboteurs who landed by submarine on the United States coast. Hans tried to help his son obtain reemployment at a sensitive defense plant, gave his son a place to live, and purchased a car for his son. At trial, Hans argued that his conduct was insufficient to constitute treasonous overt acts because they were "commonplace, insignificant and colorless, and not sufficient even if properly proved to support a conviction." The Supreme Court, 8-1, disagreed.

An example of overt acts that could have sustained an indictment and conviction were those committed by Jane Fonda in North Vietnam during July 1972, had the Nixon administration charged her. She made anti-American broadcasts, taped and played incessantly to American prisoners of war, attacking the United States, its president, and its military. She met with seven American POWs, and returned home to tell their families that they were in great shape. She lied about our POWs being tortured. She held press conferences in Hanoi, Paris, and American cities, attacking our government. She provided "photo ops" for the North Vietnamese Communists --- not the least of which showed her sitting on a North Vietnamese anti-aircraft gun used to shoot down American planes, looking through the sight at an imaginary aircraft. She met with senior North Vietnamese civilian and military leaders. (For further details, see "Aid and Comfort": Jane Fonda in North Vietnam).

Which brings us to the recent conduct of American citizen/Taliban fighter John Walker in Afghanistan. So far, we know from his own lips that he trained in two Al Qaeda terrorist camps, fought in Kashmir with Taliban/Al Qaeda forces, and marched some 100 miles with them into Northern Afghanistan, where he was captured. We also know that Walker was engaged in the Qala Jangi prison revolt where he was wounded, and that he was at least in close proximity to the killing of American CIA agent Mike Spann.

If Haupt's overt acts --- assisting his saboteu r son to get a job, a place to live, and an automobile --- were sufficient to sustain a treason indictment and conviction, and if Fonda's overt acts --- broadcasts, photo ops, lies, meetings, press conferences --- could have been sufficient to sustain a treason indictment and conviction, then what about Taliban John's overt acts that are described above: terrorist training, terrorist combat, terrorist travel, terrorist rebellion, and perhaps complicity in terrorist murder of an American?

There is no doubt that John Walker's conduct is more than sufficient to sustain the "overt act" requirement for an indictment for the constitutional crime of treason. Thus, since there is adequate evidence from which an intent to betray could be inferred, and adequate evidence to show that the enemy benefited from Taliban John's conduct (and presumably two-witness proof of at least one overt act), there is no legal impediment to indicting John Walker for treason - nor to convicting him.

However, in the days ahead, we shall see whether there is a political impediment to indicting Taliban John --- just as there was to indicting Hanoi Jane.