Traitors will be prosecuted

by Alykhan Velshi (Nov. 2006)

Just as a muscle will atrophy if unused, criminal prohibitions may lapse into desuetude when no one enforces them. Fortunately, and to its everlasting credit, the Bush administration has refused to consign the offense of treason to the ash-heap of history, and has sought, and indeed secured, the first treason indictment in more than forty years. 

Adam Yahiye Gadahn, who grew up in Orange County, California, is a U.S. citizen as well as a member of al Qaeda. He has appeared in numerous al Qaeda propaganda and recruitment videos calling for terrorist attacks against the United States, and encouraging U.S. soldiers to desert their charge. His present whereabouts are unknown, although he is thought to be near the border between Afghanistan and Pakistan.

On Wednesday October 11, the Justice Department announced that a grand jury had indicted Gadahn for treason, codified in 18 U.S.C. 2381: “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years.” Gadahn was also indicted for several lesser sedition offenses.

News of the indictment was met with fierce opposition from partisan legal commentators. Jonathan Turley, a professor at George Washington Law School, said, “There’s a real effort in the [Bush] administration to keep fear alive in the country.” Glenn Greenwald was, as ever, even more excitable: “this administration demonstrates, yet again, that there is not American tradition or custom that they are unwilling to ignore and violate if doing so provides even the smallest political advantage or otherwise enhances their power.”

These criticisms are incomprehensible in light of the meme, repeated endlessly by liberals in the wake of the September 11 terrorist attacks, that victory in the war on terrorism is best pursued via the criminal justice system: instead of bombs, bullets and guns, they wanted indictments, affidavits and amicus curiae. I would have expected a sigh of relief from the left wing legal commentariat, for a treason indictment represents the apotheosis of the criminal justice paradigm they are so attached to, and carries with it the full protections and trappings of an Article III court. Instead, nothing but criticisms and complaints.

Other commentators have fretted that the treason indictment, because it focuses on Gadahn’s propaganda broadcasts, threatens freedom of speech. In fact, the opposite is true. By punishing Gadahn harshly, we reinforce the legal distinction between, on the one hand, an al Qaeda propaganda video inciting the murder of Americans, and on the other, a Michael Moore documentary. There is a qualitative distinction between strident anti-war speech, which deserves First Amendment protection, and seditious propaganda coordinated with the enemy, which does not. The Gadahn indictment, by distinguishing between the two, ensures that the law hews to our instinctive moral sense.  

If Gadahn is ever captured alive, brought before a U.S. court, and convicted of treason, there is no way of knowing for certain that his conviction will be upheld on appeal. For starters, although treason convictions from World War II have made it abundantly clear that Americans involved in propaganda broadcasts for the enemy can be convicted of treason, using past Supreme Court decisions to predict future ones is a dangerous and reckless enterprise. This is especially true in the war on terrorism, where the Supreme Court has in recent cases chipped away at World War II precedents on enemy detentions and presidential powers.

Even if we ignore the potential for Supreme Court mischief and neoteric judgments, the Court has since World War II significantly strengthened the Constitution’s free speech protections. As applied to Gadahn’s propaganda broadcasts, there is every reason to believe that a treason indictment would conflict with the court’s current construction of the First Amendment.

Nevertheless, the narrowly-drawn indictment, which speaks principally to Gadahn’s propaganda broadcasts, could very well be in response to the evidentiary requirements of the Treason Clause of the Constitution, which requires two witnesses to the same overt act. Fortunately, this is a fairly trivial requirement when it comes to Gadahn’s propaganda broadcasts, since the courts have previously held, in discussing radio broadcasts during World War II, that a qualifying witness would be anyone who received the propaganda broadcasts. Testimony from those Americans who have seen Gadahn’s videos on their television will satisfy the witness requirement.* Understandably, it is more difficult to find two witnesses to Gadahn’s treasonous non-propaganda behavior. Even so, if the indictment is not expanded in the future, trying Gadahn solely for his propaganda broadcasts will be a useful corrector to the current naiveté about seditious propaganda that tolerates citizens playing the role of Lord Haw Haw.

Looking beyond the raw legal issues, a trial of Gadahn would, I think, expose a profound, and profoundly American, unease about the meaning of treason. For starters, is the political culture prepared to countenance a treason prosecution? As Lionel Trilling once observed, today’s “adversary culture” has desensitized many to the more strident and intractable forms of dissent and opposition to the political order. This has been accompanied by a redefinition, and indeed devaluation, of the very idea of loyalty and patriotism, and the citizen’s obligation in respect of both.

Secondly, treason carries with it a symbolism in the American context that it perhaps does not in other countries. The United States is unique for having been founded on the principles of natural rights set out in the Declaration of Independence. As a result, patriotism has always meant more than mere loyalty for its own sake. Perhaps Abraham Lincoln expressed this best when he said that Henry Clay “loved his country partly because it was his own country, but mostly because it was a free country; and he burned with a zeal for its advancement…because he saw in such, the advancement…of human liberty, human right, and human nature.”

This was in opposition to the standard during the colonial era, where treason encompassed a variety of acts that today would be greeted with ennui. As Sir William Blackstone explained in his celebrated Commentaries, the common law offense of high treason included regicide, counterfeiting money, seducing the Sovereign’s consort, and imagining the death of the King, the Queen or their lawful heir. Blackstone explained that men convicted of treason were “drawn to the gallows…hanged by the neck, and then cut down alive…entrails burned while he is alive…then his head cut off.” Female traitors, because “the natural modesty of the sex forbids exposing and publicly mangling their bodies”, were merely “drawn to the gallows, and burned alive.” What is more, the inheritance of a traitor’s heir was reduced. Depending on one’s perspective, this was either a sui generis application of collective familial guilt, or recognition that loyalty to the Crown required weakened filial obligations.

For better or worse, the Constitution departs from this standard and reduces the offenses that qualify as treason, partly because, as James Madison warned in Federalist 43, “new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other.” Furthermore, the Framers’ desire to restrict the crime of treason was an implicit acknowledgment that even the most narrowly tailored treason statute would condemn their behavior during and before the American Revolution. As early as May 1765, Patrick Henry told the Virginia House of Burgesses, shamefully and scandalously, “Caesar had his Brutus, Charles the First his Cromwell; and George the Third – may profit by their example.”

That a treason prosecution may bring a renewed debate about patriotism and loyalty is something conservatives should welcome. At a time when al Qaeda threatens us militarily, strengthening the civic foundations of the United States will be a salutary enterprise. At the very least, we should welcome any attempt to reclaim the parlance of treason from various jejune commentators who have seized on its rhetoric to attack anyone who disagrees with the President.

More prosaically, the Gadahn indictment reminds us that in the war on terrorism the battlefield includes the American homeland. The idea of an “American al Qaeda” is not some faceless abstraction from a de Chirico painting. Instead, it is a very real reminder of the need to preserve that very important tool in our legal arsenal – the offense of treason.

Alykhan Velshi is a lawyer and manager of research at the Foundation for the Defense of Democracies. [email protected]

*Memo to the Justice Department: I would be happy to testify against Gadahn at trial, since I have seen his videos on television, have an excellent recollection of what was said, no prior perjury convictions, and an unimpeachable character.

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