Did American commit treason?

Case may be hard to prove against Taliban fighter, experts say

12/22/2001

By MARK CURRIDEN / The Dallas Morning News

As federal prosecutors weigh what charges to file against Californian-turned-Taliban fighter John Walker Lindh, they face an unusual problem.

Although Mr. Lindh was captured in the heat of battle in Afghanistan, it may be difficult to pinpoint what U.S. law, if any, he has broken, experts in federal criminal law say.

Some speculate that by the time his legal options are exhausted, he may even go free.

"We all think ... [Mr. Lindh's] conduct has been atrocious and un-American," says University of Georgia law professor Eugene Wilkes. "But his actions need to have violated specific federal laws before we can prosecute him. I can't think of a single federal criminal law he has violated."

The administration clearly thinks otherwise. President Bush said Friday that he has not ruled out charging Mr. Lindh with treason, a crime punishable by death. National security and Justice Department officials continue to study how to proceed, he added.

"I want us to fully think through all the ramifications of the different options," Mr. Bush said. He indicated he wanted to devise a strategy that could be applied in similar future instances.

According to the New York Times, administration officials, who spoke on the condition of anonymity, said there was growing sentiment among top advisers that Mr. Lindh should face the death penalty on at least one of the possible charges.

Facing a charge that carries a death penalty does not necessarily mean the government would seek to impose it, one official said. But it would give the government more leverage to negotiate with Mr. Lindh's lawyers.

White House press secretary Ari Fleischer said this week that a decision could be a week or more away. Mr. Lindh, a 20-year-old former Fairfax, Calif., resident, is in military custody on board the USS Peleliu in the Arabian Sea.

Atlhough a treason charge might be popular, it would be the most difficult allegation of any charge to prove, legal experts say. For one thing, because Mr. Lindh is a U.S. citizen, he can't be brought before a military tribunal.

In a civilian court, the top obstacles will be the specific definition of treason in the U.S. Constitution and the high standard of proof required.

Article III, Section 3 states that treason can only be brought against those who give "aid and comfort" to the nation's enemies in time of war. "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," it adds.

The first problem for prosecutors, experts say, is that Congress has not declared war. Then it is improbable that prosecutors could get two al-Qaeda fighters to testify against Mr. Lindh in court.

"On a purely technical basis, they can't charge him with treason, because he hasn't aided an enemy of the U.S. with which we are at war," says Mr. Wilkes, the Georgia professor.

"And he wasn't trying to overthrow the U.S. government. From what we know, he was just trying to keep the Taliban in control of Afghanistan. That's not a crime against the U.S."

Other lawyers, however, say that a formal declaration of war may not be an absolute test, and that post-Sept. 11 presidential and congressional emergency declarations are enough.

There's a reason for the Constitution's language, scholars note. The founding fathers in effect had committed treason against the British crown just 12 years before they wrote those words. They wanted to prevent treason charges from being used to silence dissent.

Over the nation's history, fewer than 30 cases of treason have been prosecuted, the last nearly 50 years ago. And some of the most famous names associated with the word escaped that legal judgment.

Benedict Arnold, the Revolutionary War turncoat, fled to England. Vice President Aaron Burr, accused of plotting to create a Mexican empire using U.S. territory, was acquitted. World War II propagandist Iva Toguri D'Aquino, known as "Tokyo Rose," was convicted but pardoned by President Gerald Ford years later when it turned out she was a double agent for the United States.

The hurdles required to win a treason conviction have the administration researching possible lower-level charges against Mr. Lindh, federal lawyers confirm.

The best bet, experts say, is a federal law that prohibits U.S. citizens from "providing material support or resources" to terrorists – a crime punishable by 15 years to life in prison.

In interviews with Newsweek and CNN, Mr. Lindh has admitted being a member of al-Qaeda and the Taliban. But his statements may not be admissible in court because he made them without having a lawyer present, analysts say.

James Brosnahan, a San Francisco lawyer hired by Mr. Lindh's parents, said Friday that he has informed the Justice Department that he represents Mr. Lindh and that they are not to question him without advising Mr. Brosnahan first.

Federal law requires proof that Mr. Lindh "intended to do harm" against the United States or its citizens. That may be difficult to show, says Terry Hart, a Dallas lawyer and former federal prosecutor who has handled national security cases.

Mr. Lindh "is going to claim that he was over there in the Afghan mountains and had no idea about September 11th," Mr. Hart says. "It's just as likely that Walker went to fight with the Taliban because he thought they were cool guys with cool hats."

Linda Eades, a law professor at Southern Methodist University and a former federal prosecutor, says it may even be as tough to prove that Mr. Lindh "aided and abetted" the terrorists as it would be to show he committed treason.

"In proving aiding and abetting, the government needs to show more than ... [Mr. Lindh] gave his fellow soldiers a slap on the back," she says. "They need to prove that he proactively participated in the criminal activity."

All obstacles aside, many legal experts agree that the Justice Department will bring criminal charges against Mr. Lindh.

Says Mr. Hart, the former prosecutor: "They just can't set him free. So they may indict him, and they may even get a jury in this anti-terrorism environment to convict him."

But getting a conviction to stand up on appeal "may take a miracle," he says.

Dallas Morning News staff writer Michelle Mittelstadt and The Associated Press contributed to this report.