I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, October 12, 2006

Questions about the first treason indictment in 50 years

(updated below)

"Treason" is an accusation that is tossed around casually and frequently by Bush followers. Many of them seem to think that the bulk of the Democratic Party and large swaths of the non-Fox press corps are guilty of it. But treason is actually one of the most rarely charged crimes. Nobody has been indicted for treason in the U.S. in more than 50 years, and there have been only 30 or so treason prosecutions in all of American history.

Not a single American was accused of treason through the entire McCarthy era, during the Korean and Vietnam wars, nor at any time during the last four decades of the Cold War nor in connection with the rise of McVeigh-type anti-government militia movements of the 1990s. As intended by the Founders, the U.S. Government, regardless of which political party controls it, has traditionally exercised great discretion and restraint when it comes to charging Americans with that crime.

But yesterday, the Bush Justice Department announced that it has obtained an indictment that includes one count of treason against Adam Gadahn, the American citizen and former California resident who was raised and home schooled as a Christian and later converted to Islam (other reports suggest that his upbringing also included Judaism). Gadahn has appeared in several Al Qaeda videos, declared his allegiance to Osama bin Laden, and urged jihad against the United States. Deputy Attorney General Paul McNulty called a news conference yesterday to announce the indictment, and this is part of what he said:

Adam Gadahn is an American citizen who made a choice -- he chose to join our enemy and to provide it with aid and comfort by acting as a propagandist for al-Qaeda . . . Today's indictment should serve as notice that the United States will protect itself against all enemies, foreign and domestic. . . . Betrayal of our country will bring severe consequences.

Even if one assumes that a case for treason can be made against Gadahn (an assumption that, as noted below, is more precarious than it might initially seem), what possible purpose is served by the administration's treason indictment?

Gadhan has already been indicted on charges of providing material support to terrorist groups. They obviously have no idea where he is and are unable to apprehend him, or else they would have done so by now with or without an indictment. Gadhan has long been considered a fugitive who "has been sought by the FBI since 2004."

Moroever, if there is one thing that is clear, it is that the Bush administration does not believe it needs an indictment in order to detain whomever they want, including American citizens (see Jose Padilla, Yaser Hamdi and John Walker Lindh). And beyond that, the newly minted (and soon to be signed) "Military Commissions Act of 2006" expressly authorizes the President to seize and detain whomever he wants as an "illegal enemy combatant." The indictment does not add anything substantive and does not enable the administration to take any action that it otherwise could not take. If they ever apprehended Gadhan, they could always indict him for treason then.

So what is the motivation for the Bush administration to obtain the first treason indictment in more than 50 years? The always excellent Dan Eggen does his job as a journalist by including this passage in the Washington Post article he co-wrote with Karen DeYoung, suggesting one obvious motive:

McNulty dismissed questions from reporters about the timing of the indictment, which comes as the Bush administration and other Republicans are seeking to focus attention on national security issues for the midterm elections. McNulty said that authorities are concerned over the growing number of videos from Gadahn and hope to use publicity to capture him.

By now it goes without saying that virtually everything the administration does -- particularly when it comes to terrorism -- has a domestic political component to it. The administration seizes on virtually every event it can to call news conferences in order to sound the alarm bells about The Terrorists and to trumpet the tough action they are taking against them. I don't doubt that this is part of the motivation here. But the political benefits seem rather marginal and, in any event, there were available pretexts short of a treason indictment that could have been used just as effectively to trigger the press conference (for instance, they elevated Gadahn to the FBI's 10 Most Wanted List and announced a reward for him, and they also could have simply unveiled the prior sealed indictment).

The Justice Department's excuse as to why they obtained and then trumpeted a treason indictment is that they want to bring more publicity to Gadahn in order to increase the chances of finding him. But that claim is absurd on its face. Gadahn is almost certainly in Pakistan or Afghanistan, and a day or so of media coverage in the U.S. is hardly likely to lead to his capture. Nobody has had more publicity than Osama bin Laden, but that has not helped apprehend him. Moreover, there were, as indicated, numerous ways to publicize Gadahn's case short of a treason prosecution. And then there is the question of timing; why charge him with treason now? Gadhan has been appearing in these videos for years.

One notable aspect of the Bush administration's treason accusation is that the only basis for it seems to be Gadahn's appearance in the Al Qaeda videos, not any actual involvement in any terrorist plots. As the Post reported, "McNulty said the government had no information indicating that Gadahn was directly involved in planning or carrying out terrorist attacks." Additionally, the unusually stringent evidentiary burden for treason convictions imposed by the Constitution makes a conviction in this case highly questionable, at least. As law professor and treason expert Peter Margulies told Eric Lichtblau at The New York Times:

There’s a real issue here as to whether they have met the two witnesses requirement. You need witnesses who are actually familiar with the terms of cooperation of the person charged — whether they were coerced, whether they were paid — and that seems to be lacking here in this case.

The U.S. Government has every right to prosecute individuals who work with or provide direct assistance to Al Qaeda's efforts to attack the U.S. I have no objection at all to Gadahn's indictment on other charges. And every country, including the U.S., has the right to prosecute citizens for treason who wage war against it or who aid its enemies.

But treason accusations are extremely serious and have a very high potential for abuse. That is why the Constitution imposes such a high burden for proving it and independently imposes such rare restrictions on Congress' power to legislate in this area. As Find Law notes (h/t James Joyner):

The treason clause is a product of the awareness of the Framers of the ''numerous and dangerous excrescences'' which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to ''extend the crime and punishment of treason.'' The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed . . . . Beyond limiting the power of Congress to define treason, the clause also prescribes limitations upon Congress' ability to make proof of the offense easy to establish and its ability to define punishment

The Founders constitutionally elevated treason above all other crimes in several respects (see Art. III, Sec. 3). That was done for good reason. Aware of its potential for abuse, they wanted to make it very difficult to prosecute Americans for treason and to ensure that treason was asserted only in the clearest and most necessary cases.

Treason ought not to be asserted unless there is a good and real reason for doing so and, independently, there is a high probability for obtaining a conviction. Neither circumstance seems present here. And treason certainly ought not to be used as a political plaything, a pretext for calling press conferences, or as some dramatic backdrop for the issuance of stern warnings from our Government that "the United States will protect itself against all enemies, foreign and domestic" and that "betrayal of our country will bring severe consequences."

Pursuing the first treason prosecution against an American citizen in more than half a century is a very serious step with potentially significant consequences on numerous fronts. Consequently, it ought to be justified by some compelling reasons. There don't seem to be any compelling reasons here, but there do seem to be -- as always -- some clear signs of exploitation and mischief. This administration demonstrates, yet again, that there is no 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.

UPDATE: I want to clarify the argument here in response to several of the comments. As I made clear, I have no objection to the Government indicting and prosecuting Adam Gadahn. I think they ought to. And that includes for treason if a conviction can be obtained and there is a reason to charge him with that crime.

I am questioning (a) why they added a treason charge when they don't have him in custody and aren't going to any time soon; (b) why they did this now; (c) whether treason can really be supported given the charges against him (which is not to question whether he is a "traitor" in some ethical or political sense -- clearly he is that -- but whether the evidentiary requirement imposed by the Constitution can be met); and (d) what the administration's strategies and motivations are in adding this charge. Responding that he is a scumbag who works with Al Qaeda doesn't address any of that.

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