Legal Affairs – Send the Traitor to Prison, but Don’t Execute Him

National Journal

Is John Walker a candidate for the firing squad? Or a mixed-up kid who should be sent to bed without his dessert? Measuring the known facts (and much remains unknown) of this bizarre case against laws and judicial precedents, the answer appears to be that Walker is a traitor who may be hard to convict of treason, who does not appear to deserve the death penalty (unless evidence not yet public implicates him in one or more murders), and whose case raises as many tricky legal questions as any law school exam. "It’s a devil’s brew of intricate and complex issues of U.S. criminal law, of constitutional law, of military law, and of international law," says Eugene Fidell, president of the National Institute of Military Justice.

The 20-year-old Walker not only joined and fought for the Taliban, he also joined Al Qaeda-which has long boasted of being in the business of murdering Americans-and (according to Newsweek) trained in its camps in Afghanistan. On at least one occasion, he met with Osama bin Laden. Walker told a CNN contributor in a videotaped December 2 hospital interview that he had gone to the Taliban front lines with Ansar, a group of non-Afghan fighters "funded by Osama bin Laden," and that the jihad was "exactly what I thought it would be" and "definitely" a good cause. He told Newsweek that he "supported" the September 11 attacks. And in an e-mail exchange with his father, he defended Al Qaeda’s October 2000 bombing of the destroyer USS Cole in Yemen, which killed 17 sailors. In short, he knowingly allied himself with the world’s most deadly anti-American terrorists, and he continued fighting eagerly for them after September 11, after the U.S. went to war against the Taliban and Al Qaeda, and right up until his surrender.

Surely such a man-not a kid, any more than the thousands of ghetto youths the same age or younger who pack our prisons-must be prosecutable for something. But for what, exactly? More than five weeks since Walker (now being held on a Navy warship) was taken into custody in Afghanistan, Bush Administration lawyers still seem to be struggling with that question. You can hardly blame them.

The seldom-used treason statute (18 U.S.C. 2381) provides penalties ranging from five years to death for anyone who, "owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort." Walker surely adhered to this nation’s enemies and gave them enough aid and comfort to qualify as a traitor. Less clear is whether, as a legal matter, fighting for the Taliban against the Northern Alliance would qualify as treason if Walker did not know that American forces were also on the ground. And it’s not clear whether Walker did know that.

Even if a treason prosecution could clear this hurdle, the Constitution specifies that "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." Two witnesses to an overt act of treason by Walker may be impossible to find. And while he has made incriminating statements to reporters and government interrogators, he seems unlikely to confess in open court unless he strikes a plea bargain.

Walker might have another defense against a treason charge because of the peculiar interaction of the treason statute and another law (8 U.S.C. 1481 (a)(3)), which provides that "entering, or serving in, the armed forces of a foreign state … engaged in hostilities against the United States" with intent to renounce one’s citizenship automatically has that effect. He could claim that he had ceased to be a U.S. citizen and thus ceased "owing allegiance" to the United States by joining the Taliban and Al Qaeda and staying with them after the war began.

At first blush, that defense might seem a two-edged sword: If Walker forfeited his U.S. citizenship, that would remove the most obvious impediment to trying him under President Bush’s order allowing for trials by special military tribunals of noncitizen terrorists accused of war crimes. But there is no public evidence that Walker committed war crimes.

Aware of the pitfalls of a treason prosecution, Administration lawyers have considered holding an ordinary military court-martial of Walker under a section of the Uniform Code of Military Justice (10 U.S.C. 904) subjecting to a possible death penalty "any person" who "aids, or attempts to aid, the enemy" in specified ways, including "hold[ing] any intercourse with the enemy."

No American civilian has been court-martialed under this aiding-the-enemy provision since the Civil War, when two Missouri women were convicted of supplying Confederate soldiers with "victuals." While the Administration probably has the power to court-martial Walker, doing so might look like an effort to circumvent the stringent constitutional and statutory requirements for proving treason.

And in any event, a death sentence would be inappropriate. The reasons begin with a line of Supreme Court cases suggesting that under "evolving standards of decency," capital punishment should ordinarily be reserved for defendants implicated in especially heinous murders or equally grave crimes. In the 1977 case Coker v. Georgia, for example, the Court ruled that a man could not be sentenced to death for rape, because the penalty was so disproportionate to the crime as to amount to cruel and unusual punishment. A subsequent decision in 1987, Tison v. Arizona, held that defendants who acted with "reckless disregard for human life" when they broke out of prison with the help of heavily armed accomplices could be sentenced to death for murders by the accomplices. And the current Court would probably uphold the death penalty for treason. But not every act of treason involves murder. And nobody has been executed in this country in more than 30 years for a crime that did not involve murder. Nobody should be, in my view.

Was Walker involved in murders? The publicly available evidence does not make out a strong case. By fighting for the Taliban, he was trying to kill Northern Alliance soldiers in military combat. But ordinary military combat is not murder. And there is no public evidence implicating Walker in the November 25 killing of CIA agent Johnny Michael Spann-shortly after Spann’s effort to interrogate the mute Walker-in the bloody uprising by Walker’s fellow prisoners at a fort near Mazar-i-Sharif. Walker said on December 2, in the videotaped interview later aired by CNN, that "I was in the basement" at the time, that "I didn’t see anything that went on," and that the uprising "was all a mistake of a handful of people" because it violated the prisoners’ terms of surrender. Unless there is other evidence contradicting this account, the traitor Walker could not plausibly be prosecuted for the killing of the hero Spann.

An extremely aggressive prosecutor might claim that because Walker joined a global conspiracy to murder Americans by joining Al Qaeda, Walker (and every other Al Qaeda member) can be prosecuted for the September 11 murders under a 1946 Supreme Court precedent, Pinkerton v. U.S., which held that every member of a conspiracy can be prosecuted for every crime committed by any other member in furtherance of the conspiracy. But Walker told CNN (plausibly) that he had turned down an opportunity to enter more-intensive terrorist training, choosing instead to go to the Taliban front lines. There is no public evidence that he had any advance knowledge of the September 11 attacks. And the so-called Pinkerton rule has never been stretched so far as to charge a member of a large, sprawling criminal organization (such as the Mafia) for every crime committed by anyone else in the organization.

What Walker probably deserves-assuming for the moment that we have seen the worst of the evidence against him-is a prison term under a federal law (18 U.S.C. 2339A and B) imposing up to 15 years, on each count, for providing "material support" to terrorists. While this law previously covered only activities inside the United States, it was amended in late October by the Administration’s anti-terrorism package to cover activities abroad, too.

Walker’s lawyer could argue that merely joining Al Qaeda and the Taliban did not amount to "material support or resources." But one kind of "material support" identified by the statute is providing "personnel." And in this case, Walker’s act of providing one fighter-himself-may be enough to convict him. A stretch? Yes. But the alternative might be to hold that not only John Walker but also other jihadists who join and actively support the Al Qaeda conspiracy to murder Americans commit no crime unless and until they are personally involved in the killing. And if the law said that, then the law would be an ass.