Trying Walker
What to do about John Walker.

December 10, 2001 8:35 a.m.

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 not done 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.