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 oy,
what passes for "expert" legal commentary these days!
From ex-judges and law professors, to ex-federal prosecutors and
"constitutional scholars," one after another asserts that
the United States government must have formally declared war against
the Taliban regime for John Walker to be subject to treason charges.
Well, their
copy of the Constitution must be a different version than mine.
Article III, Section 3, Clause 1, states:
Treason against
the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort.
No person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in Court.
The issue,
therefore, is not whether the U.S. has declared war, but whether
Walker has waged war against the U.S., or whether he
has given aid and comfort to the enemy. And the analysis doesn't
end here.
A charge of
treason can only be brought against natural born or naturalized
citizens. Moreover, Title 8, Section 1481 of the U. S. Code provides
that citizenship is lost by voluntarily performing certain acts
with the intention of relinquishing U.S. nationality, including
"entering in, or serving in, the armed forces of a foreign
state if ... such armed forces are engaged in hostilities against
the United States .…"
Clearly Walker
was born a U.S. citizen, but he also served in the armed forces
of the Taliban government when that regime was engaged in hostilities
against America. Therefore, it appears that Walker has renounced
his U.S. citizenship by his own actions and, accordingly, would
not be subject to treason charges.
But if Walker
is not a U.S. citizen, he could be tried before a military commission,
which President George Bush's military order has reestablished for
alien and non-citizen combatants. The problem for Walker, however,
is that the full array of constitutional rights available to U.S.
citizens/defendants would not be available to him as a non-citizen
combatant. And although Walker couldn't be charged with treason,
he could well be charged with, and more easily convicted of, other
war crimes. Of course, Bush's order reserves for the administration
the discretion to decide whether Walker or any combatant will face
a military commission.
In advance
of that decision, Walker's family and lawyer have been arguing in
the media that Walker was "brainwashed" or he got caught
up in the Taliban movement but that he had no intention of taking
up arms against the U.S. In other words, they're trying to make
the case that Walker did not have the mental capacity to voluntarily
renounce his U.S. citizenship. And, unfortunately, Walker need only
overcome a rather low legal threshold to be successful.
8 U.S.C. Sec.
1481 states that
... Any person
who ... has committed or performed any act of expatriation ...
shall be presumed to have done so voluntarily, but such presumption
may be rebutted upon a showing, by a preponderance of the evidence,
that the ... acts committed or performed were done not voluntarily.
In any event,
the Bush administration is confronted with some dicey decisions.
If it concludes — for political or "compassionate"
reasons — that Walker should be tried before a U.S. civilian
court, by implication it's conceding that Walker did not effectively,
i.e., voluntarily, renounce his U.S. citizenship. If Walker didn't
voluntarily renounce his U.S. citizenship, what's the basis for
that conclusion — his mental incapacity? And if Walker didn't
have the mental capacity to renounce his U.S. citizenship, it would
likely follow that he couldn't have the mental capacity to commit
treason, or perhaps other offenses against the United States.
If the president
chooses to treat Walker as a U.S. citizen, he must be mindful of
the associated legal pitfalls and avoid them. Walker's father is
a lawyer. And his choice of San Francisco trial lawyer James Brosnahan
to represent his son was no accident. Brosnahan's every bit as clever,
flamboyant, and liberal as Johnnie Cochran. Brosnahan's also a vicious
partisan, which is why former Iran-Contra Independent Counsel Lawrence
Walsh hired him nearly ten years ago to bring phony indictments
against Reagan Secretary of Defense Caspar Weinberger.
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