The Treason Puzzle

The administration tries a new legal tack against terrorism.

WHEN THE Supreme Court considered the case of Yaser Esam Hamdi, an American citizen held as an enemy combatant, Justices Antonin Scalia and John Paul Stevens objected that U.S. citizens could not be held without charge unless Congress acted to permit it in an emergency. If the government wants to lock them up for supporting the enemy, the justices said, the Constitution specifies how it may do so: Charge them with treason or some similar crime.

That is what the Justice Department did last week to Adam Gadahn, an American-born operative who had been making videotapes for al-Qaeda. The first such charge in decades marks a significant change of course. Instead of causing him to disappear into military custody, as it did with Mr. Hamdi, the government is following a road explicitly laid out in the Constitution.

Broadly speaking, this is a constructive development. Unlike the murky terrain governing the holding of American citizens as enemy combatants, treason is defined in the Constitution. So there's no doubt as to the government's authority to pursue its case or the propriety of doing so. Mr. Gadahn, if he's ever captured, will have rights in court, and the government's standard of proof, also specified in the Constitution, is high. The videos cited in the indictment involve threats of terrorist violence made against this country on behalf of a belligerent foreign power. The indictment quotes Mr. Gadahn declaring that he has "joined a movement waging war on America and killing large numbers of Americans."

Yet treason charges could come to pose civil liberties concerns of their own. The Constitution cannot, by definition, be unconstitutional -- yet its definition of treason is so broad and vague that, were it merely written in statute, it would probably be so. It consists of "levying war" against the United States or "adhering to their enemies, giving them aid and comfort" -- language that has been used to convict people of propagandizing on behalf of enemy powers. Where exactly that bleeds into protected speech is no easy question.