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Walker Lindh may not love America but at his arraignment this week
he should express gratitude to Attorney General Ashcroft and his
prosecution team. They failed to charge the American Taliban with
treason when the evidence was there to do so.
The U.S. Constitution
defines treason as levying war against or giving aid and comfort
to enemies of the United States. Carrying arms for the Taliban while
fighting Americans fits both a legal and common-sense description
of that Constitutional charge. Much ado has been made that the Constitution
requires two witnesses to testify to the same overt act for a treason
conviction to be upheld. That can be done and a Supreme Court precedent
of a World War II case tells us how.
Hans Max Haupt
was convicted of treason for giving aid and comfort to his son,
Herbert, a German saboteur. Haupt's "comfort" was providing
bed and board, buying his son a car, and getting him a job in a
lens factory.
The Court did
not require two German soldiers to swear that they personally
observed the father giving comfort. Nor would it require, as some
have suggested, two Talibans to aver they saw Walker Lindh carrying
out some specific act of war or comfort. The Haupt Court
found the testimony of FBI agents who described five nights surveilling
the son walk in and out of the father's apartment building sufficient
to fulfill the Constitutional requirements: There were always two
agents observing the son's movements and, more significantly, the
Court could infer there was "comfort" without knowing
its exact nature. Was the beef stroganoff hot? Was the bed warm?
The Court did not care. It was sufficient that the FBI testimony
described an act — going in and out of the building where the
father had a residence — from which an inference could be drawn
there was comfort going on.
Similarly,
Walker's aid and comfort to the enemy or his levying war against
the United States can be fulfilled by two Americans testifying they
found him fighting with the Taliban, a logical step that stretches
no further than the Haupt inference. If the Court assumed
the son received comfort just by entering his father's house, it
can assume Walker gave aid by marching with the enemy.
Although he
was carrying grenades and rifles when captured, it matters not whether
Walker ever shot an American or even discharged a weapon. Nor does
it matter whether Congress declared war. It is constitutionally
sufficient that there is a military conflict where the United States
is involved. "[I]f a body of men be actually assembled, for
the purpose of effecting by force a treasonable purpose" then
any act by the accused, however "minute" or "remote"
is treason, according to Chief Justice John Marshall almost 200
years ago.
The talking
heads mistakenly surmise that because treason cases are rare, they
are difficult. No, they are rare because they can only be brought
when we are in a military conflict. The fact that there have been
limited time periods when one could "levy war against"
the United States does not make the case more difficult when such
conflicts do occur.
Others argue
that the "poor kid" went off to support a "cause"
prior to U.S. involvement. What cause? Walker Lindh did not leave
America to overthrow a dictator. He left to hook up with the dictator.
"My heart became attached to the Taliban," he declared
after capture by the United States military in late November. That's
the same Taliban that murdered women in the public square; whacked
off the limbs of men accused, but not tried, of petty crimes; denied
women employment, health care, and education, and in so doing denied
these basic rights as well to the Afghan children. Walker was not
joining a higher cause; he was aiding an evil regime.
The argument
that the lad only intended to fight the Northern Alliance, not the
United States, is contradicted by the evidence. According to the
indictment, he knew prior to September 11 that attacks were planned
against Americans; after September 11 he was told: "Bin Laden
had ordered the attacks," "additional terrorists attacks
were planned," and Bin Laden had to be protected against "an
anticipated military response from the United States."
How did he
feel about America? In his own words via e-mail to his mother: "I
really don't know what your big attachement [sic] to America is
all about. What has America ever done for anybody?" "I
really don't want to see America again." No mistaken intent
here.
Although treason
can carry a death sentence, it need not. Just like a murder charge,
the Justice Department can indict but not ask for the ultimate penalty.
Death is not the reason the American Taliban should be charged with
treason. No, it is the public-policy rationale: When a person knowingly
betrays his country for an evil cause, he should be criminally accused
of that heinous act.
Walker Lindh
voluntarily joined an entity that killed and maimed innocent civilians.
He marched with and carried weapons of war for Talibanal and Qaeda
terrorists, and remained after he knew they had attacked America
killing thousands. He failed to leave even after October 7, when
it was clear they were fighting his own country. If John Walker
Lindh is not to be charged with treason, then who?
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