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American traitor?

October 15, 2006

NEWS THAT A GRAND JURY had charged a Southern California native with treason last week begged the question: Can they still do that? The United States, after all, has not charged anyone with treason, a crime defined under English law as early as 1350, since World War II.

But if the facts are as the government alleges, Adam Yahiye Gadahn did indeed commit treason when, in his own words, he "joined a movement waging war on America and killing large numbers of Americans." Gadahn, a convert to Islam who remains a fugitive overseas, has appeared in five propaganda videos for Al Qaeda. Most recently, on the fifth anniversary of the 9/11 terror attacks, Gadahn appeared in a video featuring scenes of the attack, describing the United States as "enemy soil" and extolling the heroism of the terrorists. In a previous video released that same month, Ayman Zawahiri, Osama bin Laden's second in command, introduced Gadahn as "our brother, Azzam the American."

Treason is the only crime defined in the Constitution itself, which establishes a higher evidentiary burden -- two eyewitnesses or a courtroom confession -- for its prosecution. This higher burden, and the ability to rely on other criminal statutes in most such cases, is the reason the government so seldom resorts to the charge of treason. But in Gadahn's case, his own video messages may help the government prove its case, and prosecutors were within their rights to charge him with the most serious offense against the nation, a crime that can be punishable by death.

There may be no evidence that Gadahn picked up a gun or assembled bombs. But the U.S. criminal code, which tracks the constitutional language, states that "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." If the government can prove the facts it alleges, that is clearly what Gadahn did -- he joined the enemy (there can be little doubt that a state of war exists between Al Qaeda and the U.S.) to further its cause.

The government's attempts to circumvent the Constitution in its war on terror -- by establishing military tribunals lacking in due process and wiretapping Americans without a warrant -- have been roundly and rightly criticized. But in this case, the Justice Department is relying on the U.S. court system and the most venerable of U.S. laws to bring a high-profile U.S. operative of Al Qaeda to justice.

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