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indictment against John Walker Lindh should be expanded. He has
committed acts that merit treason, not a lesser charge. The principal
lesser charge — conspiracy to kill U.S. nationals abroad —
is likely no easier to prove, and strategically, if the case is
ultimately to be plea bargained (as many suspect), it makes no sense
for the Department of Justice to start the bargaining from anything
other than a position of strength. Indeed, given that treason relies
primarily on proof of acts, rather than conspiratorial agreements
that may only be provable with the possibly inadmissible statements
of the defendant himself, the treason charge can even be argued
to be less, not more, difficult.
U.S.
vs. Walker Lindh is no easy case. By constitutional design,
treason — the only crime described explicitly in the Constitution,
itself — was intended to be a rarity — reserved for those
who by both word and deed betrayed their nation. Our Founders did
not want treason charges lightly or casually brought.
But Walker
Lindh, or Suleyman al-Faris as he wanted to be known, was not engaging
in rights of protected speech or association, he was "levying
war against" the United States. He was giving "aid and
comfort" to the enemy. Yes, treason is difficult to prove.
An open confession in court is required or two witnesses to overt
acts of treason along with the requisite intent to betray. Surely
two witnesses, however, can be found among the hundreds of detainees
of Walker Lindh's overt acts of preparing to levy war through his
ready embrace of training to "shoulder weapons, pistols, and
rocket propelled grenades" and Walker Lindh's desire to be
assigned to the front of the war against the United States. If that
is not enough to make the case, what is?
So why have
there only been a handful of treason prosecutions in our history?
Because most prior cases were not taking up arms against the United
States nearly as directly and obviously as Walker Lindh. Chief Justice
John Marshall explained in the early case of Ex parte Bollman
(1807) that a treason charge must be premised upon the actual levying
or waging of war. Marshall was not saying that to observe some ultra
formal distinction between a declaration of war and the extant joint
resolution of equal congressional resolve, but to highlight a difference
between advocacy and "a body of men actually assembl[ing] for
the purpose of effecting by force a treasonable purpose. . ."
Marshall was careful to say that he did not mean that a person must
actually appear bearing arms against the United States to be guilty
of treason. Rather it was enough if a body of men assemble to forcefully
attack the United States, and then "all those who perform any
part, however minute, or however remote from the scene of action,
and who actually leagued in the general conspiracy are to be considered
as traitors." John Walker Lindh played that part, and he was
not remote from the scene, but pleading to be introduced into it
— to be as it were in the "front lines" against his
countrymen.
Of course,
history buffs also remember that the notorious Aaron Burr was also
let off of his treason charge. Burr had not been present at the
alleged assemblage of men, so he could only be convicted of the
lesser charge of conspiracy. It is now textbook law that: "After
Marshall's opinion, it has become extremely difficult to convict
for levying war against the United States without proof of personal
participation in actual hostilities." Thus, the government
did obtain treason convictions in the Whiskey Rebellion and against
members of the confederacy in the Civil War — both subsequently
handled by amnesty proclamations or pardons. Walker Lindh ought
to also be considered in light of two World War II cases —
one unsuccessful and one only dubiously a success. In Cramer
v. U.S. (1945), the government accused Anthony Cramer of
treason because of his drinking and talking with the German saboteurs.
Quite obviously, there were no sufficient overt acts or two witnesses
thereof and no treason. However, there was a conviction in 1947
in Haupt v. U.S. because the Court chose to construe
"aid and comfort given to the enemy" quite broadly to
include sheltering and helping a son (saboteur) get employment and
a car. Justice Jackson said it was enough that the overt acts actually
helped the enemy. So, even more powerfully, it would seem, did John
Walker Lindh. If the ultimate objective of the government is to
dispose of this case via plea bargain, it makes no sense to start
the bargaining from the middle, rather than the strongest, case.
Attorney General
Ashcroft was right not to try Walker Lindh before a special military
tribunal. By presidential design, these special tribunals are for
noncitizens, and by reasonable inference, the supposed captains
of al Qaeda or other terrorist leadership. At the moment, unless
an action is brought to establish in law, what seems apparent in
fact, that Mr. Walker Lindh relinquished his citizenship; he deserves
his day in a regular tribunal.
But here is
the problem with the charges brought: They all depend on Walker
Lindh's statements. There is already an aggressive effort to exclude
all of these conversations — though it will be novel to see
how freely talking to CNN can be blunted by defense counsel. True,
the government claims that Walker Lindh was informed of his Miranda
rights to remain silent and to have counsel, and that he knowingly
waived them. Factually, however, his waiver came only after his
parentally distant folks found him legal counsel. A legal counsel
who was stiff-armed by the Pentagon.
Of course,
the fact that his parents were hiring counsel in San Francisco may
turn out to be just a little a bit of late parenting and irrelevant.
In the eyes of the law, this troubled young man is an adult who
makes his own representational choices. Yet, whoever comes to represent
Walker Lindh will say that he was in custody and could not effectively
waive anything at the time his statements were given.
It is not clear
Walker Lindh's hypothetical defense will prevail. Yet, there is
precious little settled about the law as it applies to this odd
duck from Marin County. But this much is clear: Given the war that
has been thrust upon the United States, Walker Lindh is no ordinary
criminal defendant. However, neither is he a prisoner of war in
any formal sense under the Geneva Convention, since he was fighting
as an unlawful combatant, out of uniform, engaging in warfare aimed
at civilians and civilian targets.
It can, and
should be, strenuously advocated that Walker Lindh as a battlefield
detainee is not entitled to counsel in the trenches. Whatever the
hybrid detainee status proves to mean that normal conceptions of
custodial interrogation or rights to counsel should not be unthinkingly
accorded to Walker Lindh. As an "American Taliban," he
does not have the immunity from prosecution for battlefield assault
that the exigencies of war give to those in a regular army. Legitimate
questions can be asked of unlawful combatants. If such noncoercive
interrogation yields damaging answers, they should not be excluded
from a subsequent trial whether or not Miranda was effectively raised.
But again, it's anyone's guess whether the federal judiciary will
concur, and charges premised solely upon detainee admissions, not
provable overt acts of treachery, magnify the difficulty.
In disclosing
the charges against Walker Lindh, the attorney general indicated
that the investigation was continuing, and additional charges may
yet be sought in the formal indictment. With or without Walker Lindh's
own statements, he can factually be shown to have given material
assistance to terrorists and engaged in prohibited transactions
with terrorist organizations. This will yield a significantly extended
or life sentence, but without the additional treason charge, it
may not bring justice.
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