The act of treason is in the eye of the beholder

Chicago Tribune; Chicago, Ill.; Feb. 25, 2002
By Linda R. Monk

It’s terrorism central here in Alexandria, Va. The small town’s detention center is now home to both Zacarias Moussaoui, the French citizen and potential 20th hijacker accused of conspiring to kill Americans in the Sept. 11 attacks, and John Walker Lindh, the American Taliban charged with conspiring to kill Americans in Afghanistan. I’ll admit to being a little extra scared when I drive by the jail, a high-rise red brick building just a couple of miles from my home. But Sheriff James H. Dunning isn’t worried. “We’ve never had an escape or suicide in 15 years,” he says. Dunning has had other high-profile prisoners, like FBI superspy Robert Hanssen, but none with whom the entire United States has been at war.

How did two notorious terrorists wind up in a historic little burg that still has an official town crier? Two reasons: The jail is right across the street from the federal district courthouse, and Virginia juries are conservative and fond of the death penalty. Not to mention that, since the Pentagon is in their front yard, most Northern Virginians take the terrorist attacks personally.

John Walker Lindh is not being charged with a capital offense, nor with the crime most Americans think he’s guilty of — treason. That’s because the Constitution is very specific about how the government must prove treason; in fact, it’s the only crime defined in the Constitution. The framers were all too aware of how easily treason could be used to punish political opponents, and they wanted to make sure that such a serious charge would not be made lightly. Therefore, according to Article III: “Treason against the United States shall consist only of levying war against them, or in adhering to their enemies, giving them aid and comfort.” Furthermore, the standard of proof for such acts is also high: “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.”

These provisions create problems for Lindh’s prosecutors. As part of the Taliban’s fighting force, Lindh was already serving on the front lines against the Northern Alliance before the United States began bombing Afghanistan in October 2001. When Lindh’s unit surrendered to the alliance in November, he was ultimately questioned by CIA agent Johnny Michael Spann, on a videotape that has been replayed around the world. In the prison uprising that followed, Lindh was shot and Spann was killed, the first American fatality by hostile forces in Afghanistan. Yet thus far prosecutors have not produced two witnesses who actually saw Lindh fire upon U.S. troops or give aid to the enemy. At a news conference on Feb. 5, the U.S. attorney prosecuting Lindh left open the possibility of adding a treason charge. But conspiracy, of which Lindh is accused, is not enough to prove treason. That principle was established in an 1807 ruling by Chief Justice John Marshall, sitting as a trial judge in the case of Aaron Burr. A former vice president, Burr was tried for plotting to foment rebellion in lands west of the Mississippi. Burr was acquitted of treason because Chief Justice Marshall held that, under the Constitution, two witnesses must testify that Burr was actually involved in levying war against the United States, not merely a conspiracy to levy war.

Because of these evidentiary constraints for treason, the government has prosecuted disloyal citizens on other grounds. Julius and Ethel Rosenberg, for example, were executed in 1953 for violating the Espionage Act, which made it illegal to transmit unauthorized information on national defense.

Spann’s mother said in a press conference on Feb. 13 that Lindh “is a traitor because of the way he lived.” Not according to the Constitution, which says that treason must be witnessed, not inferred. The framers had suffered the consequences of loosely defined treason, when merely imagining the king’s death would suffice, and they set a higher standard for the American republic. You can say Lindh is unpatriotic, you can say he’s stupid, but you can’t say he’s a traitor. Not unless you have two witnesses.