Charge of Treason Difficult to Prove, Legal Experts Say

By Dan Eggen
Washington Post Staff Writer
Friday, October 13, 2006

The decision to charge alleged al-Qaeda propagandist Adam Gadahn with treason is something of a gamble by the U.S. government, which has not pursued such a case in more than 50 years and has a mixed track record for convictions over the course of American history, according to legal experts and historic accounts.

Gadahn, 28, was indicted Wednesday by a federal grand jury in Santa Ana, Calif., based on his alleged appearance in numerous al-Qaeda videotapes calling for the death of Americans and for attacks on U.S. targets.

Many legal experts said yesterday that although Gadahn may be a suitable candidate for a treason charge, federal prosecutors may face serious difficulties in securing a conviction if he is ever brought to trial.

Gadahn, a fugitive believed to be living in Pakistan, grew up on a Southern California goat farm, converting to Islam as a teenager and later moving overseas. He allegedly says in one video that U.S. "streets will run red with blood" and in another refers to the United States as "enemy soil."

"One of the reasons that I think Gadahn was charged was because of his intentional, brazen and conspicuous activities," said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino. "All the stars lined up to virtually hand the required elements to prosecutors on a silver platter. . . . But it's not a slam-dunk by any means."

Fewer than three dozen U.S. citizens have ever been charged with treason, which is specifically defined in the Constitution and requires two witnesses or a confession in court for a conviction. The framers -- who bristled at England's frequent prosecution of dissidents for alleged treason -- defined it narrowly as "levying war" against the United States or providing "aid and comfort" to its enemies.

The penalties for treason were left to Congress, which set the range of punishment from five years in prison to death.

The roster of previous treason defendants includes former vice president and malcontent Aaron Burr, who was acquitted of attempting to set up his own republic, and abolitionist John Brown, who was hanged for treason after he and his followers captured the federal arsenal at Harpers Ferry. The last flurry of treason cases was prosecuted during and after World War II, culminating in the 1952 conviction of a Japanese American for abusing U.S. prisoners of war.

The Justice Department's legal arguments in the Gadahn case rely heavily on the "broadcast cases," a series of treason prosecutions of U.S. citizens providing propaganda services to the Germans or Japanese. The most famous of these involved Iva Toguri D'Aquino, accused of being "Tokyo Rose," who served six years in prison but was later pardoned after the two key witnesses recanted.

In the Gadahn case, the Justice Department argues that the defendant's appearance in five incendiary al-Qaeda videos -- particularly three recent broadcasts in which he is clearly visible -- provide enough evidence to fulfill the Constitution's witness requirements for treason.

Deputy Attorney General Paul J. McNulty, in announcing the indictment Wednesday, said prosecutors "are very confident about the satisfaction of the two-witness rule," in part because "a number of individuals would be in a position to be able to identify Adam Gadahn" in the videos.

"We understand our burden," McNulty said. "We have to meet a burden that includes a number of elements in addition to the two-witness rule to show that there has been aid and comfort given to the enemy. And the elements will be met . . . if and when we have an opportunity to present our case in court."

But some liberal legal scholars are already raising questions about the strength of the government's case.

Leon Friedman, a professor at Hofstra University School of Law in Hempstead, N.Y., said the Supreme Court may take a dim view of bringing a treason charge as part of the "war on terrorism," which does not have the limits common to traditional armed conflicts. "The only time we've used treason in the past is in cases that resemble a traditional war," Friedman said. "It's just not the same thing. . . . We don't want the treason charge thrown around indiscriminately."

Bobby Chesney, a specialist in national security law at Wake Forest University, said he is not aware of any other case in which treason has been alleged involving a terrorist group.

Chesney noted that a number of al-Qaeda suspects both before and after the Sept. 11, 2001, attacks have been charged with seditious conspiracy, which is similar to the crime of treason but is easier to prove in court.

"It can be argued you can't get much better than the American front man for al-Qaeda for a treason charge," Chesney said. "But it's always a very difficult crime to prove."

Staff researcher Julie Tate contributed to this report.

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