Posted on 12/20/2001 3:18:02 PM PST by flamefront
Terror: John Walker left America, endorsed military attacks on it, then joined arms with those attackers. If this isn't treason, then what is?The Walker case is no small matter. How America responds to it will reveal much about how seriously it takes the war on terrorism. Will America uphold the laws that protect it? Or will if neglect them as it slips back into the very relativism that made America vulnerable to Walker's Taliban brethren in the first place?
President Bush has said America will make no distinction between terrorists and those who harbor them. Why, then, should his administration make an exception for an American who fought with them?
Treason is the only crime listed in the U.S. Constitution for a reason: It is the direst threat to the common good. If it is left unpunished, free republics fold.
Walker is not a "misguided" boy, as the usual chorus of apologists assert, but a self-described "jihadi," the same age, 20, as many of the American soldiers his Taliban friends tried to kill.
The Constitution says, "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." Will Walker's case meet these requirements?
This is an open question. The two CIA agents who questioned a surly Walker in a prison in Mazar-e-Sharif might have satisfied the Constitution's requirement. But one of them, Mike Spann, died in a prison revolt that Walker's stonewalling helped, at least indirectly.
Walker still might confess, or other witnesses to his conduct may still be alive. Whatever happens Walker should not escape trial for political reasons, or on loopholes a la Alan Dershowitz.
Perhaps only in the relativistic redoubt of Northern California's Marin County -- where Walker first imbibed his anti-Americanism -- would treason abroad form a legitimate destination point on a young adult's search for self-identity.
In the real world, treason kills people, and a society that treats it as an eccentric joke is on the path to ruin.
American's cannot justify Walker's conduct without jeopardizing their own future safety. They cannot release Walker on a rationalization without at the same time insulting all the men his age who are making equally free choices in defense if American freedom.
Punishment and reward presuppose that humans, beyond the age of reason, are free moral agents. If John Walker isn't responsible for his treachery, then his contemporaries in the Marines aren't responsible for their heroism.
This is an abominable conclusion to draw. But it necessarily follows from a philosophy that considers 20-year-olds automatons of fate, not humans with free choice.
A writer for the San Francisco Chronicle says Bush should welcome Walker back to America, and "let him get his life back on track. We'd want nothing less for our own children, who could easily have found themselves in a similar mess."
Freeing Walker would only deepen the mess. After decades of anti-Americanism -- long indulged by craven politicians -- Americans, particularly young Americans, need a clarifying lesson in law and civic duty. Sure, let him return to the Bay area. But to a cell in San Quentin.
"But one of them, Mike Spann, died in a prison revolt that Walker's stonewalling helped, at least indirectly."
Unless this dood is going to claim that Art Bell dropped him into that prison via a UFO staffed by a squad of Greys, I saw him on the teevee! Shucks, I'll testify. Truth be told, I bet the other 'witness' to the act didn't see him popping caps off, either, so my testimony should have as much weight.
. . . wow, did I make a mistake calling that Walker kid misguided. Where were my political people on that one? This has become a real mess. Here we are - at Christmas no less - and thanks to Newsweek and CNN, every day that guy looks worse and worse. He got radicalized by Malcolm X. He approved of the attacks on the Cole, the World Trade Center and the Pentagon. He trained and fought with al-Qaeda, and maybe even met bin Laden. He stonewalled Mike Spann's interrogation, and may have been involved in his murder. He admitted his outfit and the camps were funded by bin Laden. He claims to know what happens next.
Every day the media flogs this story. Outside of his parents - even they've been keeping their mouths shut lately - hardly anyone has any sympathy for Walker. Rove just told me that CNN is getting thousands of emails condemning this guy. David Horowitz says he should be shot. Even most criminal defense lawyers have nothing good to say about him. We've got him on a Marine ship in the Arabian Sea. Ashcroft sends some FBI guys out there to read him his rights. Rumsfeld thinks he's a traitor. So do lots of people on the Hill. Democrats, too. But the libs and the peaceniks and a lot of parents feel sorry for him.
The lawyer the parents got him . . . Al Gonzales tells me he's a tough case. Brenihan or someone.
They're waiting for me to make a decision.
We sure have to charge him with something. Can't let him go free. Back to Afghanistan or Pakistan, or even California. People are angry. Me, too. Now, anyway. Got to climb back off that limb, Rove says, and he's right. I spoke too fast. We can put out the word that I didn't have the facts. And I didn't. Everyone knows that. More stuff is coming out every day. Everyone's talking about treason. That's pretty heavy. Even the Rosenbergs weren't hit with treason. Even Nixon didn't indict Jane Fonda. But Holzer says there's an easy indictment, and a jury could find Walker intended to betray America and gave aid and comfort to the enemy by an overt act. Two witnesses shouldn't be hard to find.
Ashcroft admitted that if we can't get him for treason, we can sure get him for something. What did he say . . . something like providing material resources to terrorists? Maybe aiding and abetting or conspiracy to commit treason, murder or terrorism. He figures that Bresnihan will try to plead Walker out using leverage, like his age, that he cooperated with us, whatever. But Ashcroft says there's no leverage here, just smoke and mirrors. We've got Walker on something and everyone knows it.
I don't want to make Walker a martyr, but how the hell can we make war on terrorism and let him walk? How can we uphold the rule of law and ignore what this guy did? He's an American citizen. All those World War II people - Axis Sally and Tokyo Rose, and the others - all they did was broadcast. This guy fought against us. He's a terrorist, he's al-Qaeda.
Why not treason, and a lot of other stuff, too? Let the jury decide. That's what they're for, right?
I'll tell Andy Card to have Ashcroft get me a laundry list. Maybe we'll throw the book at him. Let the chips fall where they may.
After Christmas.
______________
Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is co-author of the soon-to-be-published "Aid and Comfort": Jane Fonda in North Vietnam. He provides information about the Walker case at www.Talibanjohn.info, and may be reached at Hankholzer@aol.com or through www.hanoijane.net.
Check out another thread on this site. I believe "Due Process" is in the title. It gives a legal analysis of the situation and concludes that treason could very well be proven.
He already has forfeited his citizenship. Done deal.
That sounds like Sen. Harkin talking during the Clinton removal trial. I don't think there is any reason to prematurely preclude a trial in either case just for that reason. Actually bringing the arguments out in the open can change people's minds. This would have happened if any of the information in the Ford Building would have been presented as evidence of such things Juanita Broaddrick's rape, etc.
Here we all need to see the facts and learn to appreciate the world of wrong involved with committing treason.
This should not be treated like a game. We had enough gaming the system in the previous regime.
Mr. Walker renounced his citizenship the moment he VOLUNTARILY joined the Taliban and Alquida and went to "camp in order to learn how to POISON, SHOOT, and BLOW UP Americans. He is a TRATOR who was involved in the riot in which a Federal agent was BITTEN and beaten to death. According to broadcasts appearing on CNN and elsewhere he heartily approves of the Taliban and their stated goals for the destruction of America along with the events of Sept. 11. If there is to be justice, he must be brought up on charges of TREASON and he must, after a fair trial suffer the consequences of his actions. He doesn't need a spanking, he doesn't need a reprimand, he needs the death penalty or if the government doesn't have the guts to do this, life in prison with NO POSSIBILITY OF EVER GETTING RELEASED. If they can't handle this then turn him over to the Northern Alliance. They know how to deal with foreign terrorists perpetrating crimes within their country.
Mr. Bush must be strong and the federal government needs to do the right thing. Otherwise it is "business as usual" and the terrorists WIN!
Dr. S
bill handel, rush's sub, is a lawyer.
one lawyer says, nay and the other yay.
thanks.
Although I don't normally watch TV, CNN was on where I happened to be working today. It disgusted me to hear Bush weasling on this straightforward situation. "We have not ruled anything out." or something...
Provided By
Henry Mark Holzer
Professor Emeritus, Brooklyn Law School
(Hankholzer@aol.com)
When my co-author and I wrote our soon-to-be-published
(for information see www.mcfarlandpub.com), about whether her 1972 trip to Hanoi and her activities there constituted treason, we had no idea that this arcane "mother of all crimes" - ignored since World War II - would ever again seize public attention as it has recently, because of the conduct of John Walker [Lindh].
As I've watched the print and electronic media coverage of the Walker case in recent weeks, I've been appalled by the ignorance displayed not only by the media, but by pundits and politicians - even lawyers - as they've pontificated about the legal aspects of the case. Unfortunately, there is a great deal of misinformation being bandied about - not only on the subject of treason - but on other crimes of which Walker may be guilty as well.
In an attempt to set the record straight, during the past few weeks I have written three widely published commentaries on the legal aspects of the Walker case, aimed at the lay reader. [All three are reprinted at www.talibanjohn.info]. These commentaries, in turn, generated many requests for interviews, as well as a large number of emails seeking further information.
Given my wish to continue exploring the complex and important legal issues surrounding Walker's culpability, due to time constraints I intend from now on to use www.talibanjohn.info as the means of communicating my thoughts about the case. Until Walker's fate is finally resolved, I'll be providing relevant information and analysis there on both the legal and political aspects of the case.
As to my qualifications, I've been a lawyer since 1959. From 1972 until 1995, I was a member of the faculty at Brooklyn Law School, where I am now Professor Emeritus. My fields of expertise are constitutional and appellate law, and I am the author or editor of six books and over one hundred articles, essays, reviews, etc. As noted above, I am co-author of "Aid and Comfort": Jane Fonda in North Vietnam, a book that explores and answers the question of whether Fonda's trip to Hanoi and her activities there constituted treason.
Well, the Boss has asked for options about how to deal with Walker.
The good part is that he's made it clear that I'm to ignore political considerations. Apparently, Rove and the other political mechanics in the White House aren't going to have any input into this. Maybe Rumsfeld, because of all the other prisoners we have, but not anybody else. Only the President. And the other day, he said Walker faces a grim future.
The bad part is that he may not like what I'm going to tell him, so we better be very sure we're on solid ground and there are no leaks before he makes up his mind. Or I'll have painted him into a corner. Not a good idea.
Even before last week, the facts were pretty clear. Since then, we've learned that Walker was definitely Al Qaeda. And the president said so. No question Walker knew who he was with, and what he was doing. Newsweek just reported that he was tight enough with Al Qaeda to live in a secret camp frequented by Osama himself. Where one of the hijackers trained. Walker met with bin Laden at least once. He opted to train as a fighter rather than as a martyr. He admitted membership in Ansar, and that it was funded by bin Laden. Solid facts!
Let's start with the rule-outs.
He's an American citizen, so no military tribunal. If we want to go against his citizenship, that's way down the road after all the criminal proceedings. But it's worth thinking about.
No court-martial, because he wasn't in our army.
If he's just a prisoner of war, sooner or later he gets to go home. Good that Don agreed not to call Walker a POW. And he wasn't in uniform. So, he's not a POW. Maybe some Geneva Conventions problems here, too.
No war crimes, either. No Nuremberg.
Terrorism has to be within the United States. Bad facts. No help there.
Forget what we charged the Rosenbergs with. There's no Espionage Act here.
There's a statute prohibiting enlistment to serve against the United States, but that's only three years tops.
Lying to a federal officer is a felony under 18 U.S.C. 1001, but that's only five, tops.
Seditious conspiracy and advocating overthrow of the US government don't apply.
No matter what he tells us that might help, he can't go free.
No matter what those talking-heads lawyers say on TV, there's no Miranda rights problem. Not for an enemy detainee interrogated halfway around the world by American troops and CIA agents. I'd like to ask Gerry Spence if Axis Sally or Tokyo Rose were entitled to Miranda warnings. He'd probably say yes.
So where does that leave us?
Let's start with treason.
I'm amazed at how wrong everyone outside the Justice Department is about treason. Especially those law professors. Where does the media get them? Virtually every one of them deserves an F. All you have to do is read eight cases, three in the Supreme Court and five in Courts of Appeal. Treason hard to prove? Ridiculous. Can we get an indictment on whether he intended to betray, an overt act, aid and comfort, with two-witness proof? Of course we can. Could a jury convict? Sure. No question about the acts. Look at everything he did. They can infer intent from the act. Aid and comfort is easy. After all, he fought with Al Qaeda, stonewalled Spann, was there when he was killed. We can also charge him with conspiracy to commit treason under 18 U.S.C. 371. All we need for that is an agreement to adhere to the enemy giving aid and comfort, and any kind of an over act, even a legal one.
No one's talking about 18 U.S.C. 2332. You murder an American outside the US, you can get up to life or even death. If you conspire, it's up to 20 years. I'm intrigued by the Spann killing. We need to get more facts from Defense and CIA, but we know that Spann interrogated Walker, then the riot broke out, Walker was wounded and Spann killed. It may be that Walker was a principal, an aider and abettor, or a conspirator. If the facts are there, I'd go with that. Especially because if we charge treason, a jury could go with the homicide instead.
My staff leans toward charging Walker with a single count of providing material support to a terrorist organization under 18 U.S.C. 239A. But I don't like it. It's only worth ten years, maximum. Worse, the term material support hasn't been authoritatively defined by the courts, and I'm not sure that the statutory definition in 18 U.S.C. 2339B fits Walker. It seems to me that Walker didn't provide anything material to the Taliban or Al Qaeda. It was the other way around. And I don't see how conspiracy or aiding and abetting helps us here. Also, it doesn't give us much bargaining power with Walker. If he's just looking at ten years, Brosnahan might advise him to throw the dice with a jury. Poor kid, and all that devil-made-me-do-it nonsense. But if Walker's looking at death or a good many years, maybe the ten would be attractive.
Procedurally, we bring him back by air into Virginia, and we have him in a good district to try a treason case. Tough juries. That's why we have Moussaoui there.
Let's see what the staff recommends, but that's how I see it now.
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