Reason for Treason

So, now we've charged American al-Quaida member Adam Yahiye Gadahn with treason.

Treason is the only crime outlined in the Constitution, but the Framers had in mind a restrictive conception of the crime. Even American Taliban John Walker Lindh was not charged with treason, even though he carried a rifle, instead pleading guilty to conspiracy to murder U.S. nationals, aiding the Taliban and terrorist offenses relating to al Quaida.

Treason consists of levying war against the U.S., or in adhering to their enemies. Chief Justice Marshall, in the Burr treason trial, confined the meaning of levying war to the actual waging of war. Said Marshall, "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 offen[c]es...the actual enlistment of men to serve against the governement does not amount to levying of war."

First, I love that someone uses the word "flagitious," though it does seem like a term more befitting the behaviors of Rep. Foley, but that is another story. Marshall goes on to explain that, while an assemblage of men gathered for the purpose of levying war does not consitute treason, still "there must be an actual assembling of men, for the treasonable purpose, to consitute a levying of war."

Speaking of Burr's confederates--Bollman and Swartwout--Marshall repeats that no conspiracy for overturning the government and "no enlisting of men to effect it, would be an actual levying of war." It would seem that, regardless of Gadahn's rhetoric or functioning as a translator for al-Quaida, he has not actually levied war.

Marshall wisely concluded by saying that "atrocious" crimes which are aimed at violent subversion of peacemaking laws and institutions "are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide the case...punishment in such cases should be ordained by general laws."

As I've said before, this is not a war, and terrorism is a crime. Just because the president has committed troops to combat doesn't make it a war, unless Congress declares it to be so.

We have laws in place to deal with crimes such as terrorism. Supporting criminals is not treasonous activity. It's a number of illegal things, but treason is not one of them.

Marshall is mindful of the danger of the mob mentality when he says that we should seek recourse to general laws to deal with most infractions short of treason (waging war).

Of these laws he says they are "formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."

He is cautioning that there is no wiggle room here, for people whipped into a patriotic frenzy will likely try and stretch the definition to fit the apparent threat. He is making it clear that we have a capacious jurisprudence capable of handling the gamut of offenses one is likely to encounter in a democracy, and that we should not seek recourse to treason for every offense against the republic, offenses which might more suitably be dealt with under other U.S. Code.

Gadahn may be guilty of any number of crimes, but treason is not one of them. It's possible that he's guilty of supporting a terrorist organization, and therefore, conspiracy to kill Americans, which is a violation of Federal law. He is probably also guilty of immigration violations, and without a doubt, any jury with the slightest aesthetic sense, would find his beard an offense.

Treason just sounds so Benedict Arnold and Red, White and Blue. If we can ferret out the traitors in our midst, all will be well, right? The subtext is, don't go sporting a scraggly beard and espousing opposing credos.