Wednesday, October 11, 2006

WAR! Or a reasonable fascimile thereof.

Well, this is very interesting:

American al Qaeda spokesman Adam Yahiye Gadahn is to face treason charges, federal sources told CNN on Wednesday.

The 28-year-old California native who has appeared in five al Qaeda videos will also be charged with offering material support for terrorism, the two sources said.

His indictment was to be returned in Los Angeles and will be announced at 4 p.m. ET in Washington by the Justice Department, one of the sources said.

Gadahn, known as "Azzam the American," is not in U.S. custody and his location is unknown.
Treason, of course, is the only crime defined by the Constitution, not statutory law:

Section 3: 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 open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
As Wikipedia notes (no, not my preferred source, but convenient in this case): "In Ex Parte Bollman (1807), the Supreme Court ruled that 'there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.' "

Is terrorism, then, an act of war, or a criminal act? Clearly the Administration wants to throw its lot behind "act of war." But, again, per Wiki, the holding in Ex Parte Bollman was:

The Constitutional definition of treason is limited to actual, direct, and concrete involvement in an attempt to forcefully overthrow the government.

That is, treason is essentially a "military" offense. For instance, no amount of anti-government speech can qualify as treason, although giving away military secrets might.
Here is the language from the case itself:

To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied.
And clearly Bollman envisioned both the capacity and intent to conduct war, and to do something such as seek the overthrow of the government:

It is therefore more safe as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide.

To complete the crime of levying war against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New-Orleans by force, would have been unquestionably a design which, if carried into execution, would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlisting of men to effect it, would be an actual levying of war.
I don't think that language allows much room for saying al Qaeda has actually levied war against the US. Perhaps Mr. Gadahn has expressed anti-government sentiments, or even a desire to see the US government overthrown. But are we at war with al-Qaeda, or they with us?

Or is this more of the John Yoo school of jurisprudence?

Addendum: yeah, I'm sorry, this is just plain weird:

The charge of treason was used for the first time in the United States' war on terrorism Wednesday, filed against a California man who appeared in propaganda videos for al-Qaida.

Adam Yehiye Gadahn, 28, could be sentenced to death if convicted of the charge, which has been used only a few dozen times in U.S. history and not at all since the World War II era. He also was indicted on a charge of providing material support to terrorists.

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