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They Dare Call It Treason (Finally) By: Henry Mark Holzer
FrontPageMagazine.com | Friday, October 13, 2006


In a stunning reversal of United States policy that has been in place since the end of World War II, turncoat citizen Adam Gadahn has been indicted for the constitutional crime of treason. (The second count of the indictment charges him with the crime of providing material support to a designated foreign terrorist organization.)

Eight treason indictments and convictions of Americans came out of World War II. One resulted from mistreatment of prisoners of war held in Japan. Two arose from spying activities in the United States. Four, including a case against the infamous Axis Sally, were for making propaganda broadcasts on behalf of the Nazis. The fifth was for similar broadcasts by the equally infamous Tokyo Rose.

All eight indictments and convictions were based on Article III, Section 3, Paragraph 1, of the Constitution of the United States: "Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them aid and comfort."

The "aid and comfort" prong of treason has been interpreted by the Supreme Court of the United States to require proof of four elements:

  1. an intent to betray the United States (which can be inferred from);
  2. an overt act;
  3. witnessed by two people; and
  4. that provides aid and comfort to an enemy of the United States.

After World War II, a notorious example of treason was Jane Fonda’s 1972 trip to Hanoi. As Erika Holzer and I proved conclusively in our "Aid and Comfort": Jane Fonda in North Vietnam, Hanoi Jane was indictable for, and could have been convicted of, treason because of her activities. Regrettably, Fonda was not indicted because of political calculations made at the highest level of the Nixon administration—just as other kinds of political reasons since 1972 prevented treason charges from being brought against a host of other traitors since then. For example, charges other than treason were brought against Julius and Ethel Rosenberg, Navy spies in the Walker family, renegade CIA and FBI agents Aldrich and Miller, and Taliban John Walker. And, as of today at least, no charges of any kind have been leveled against The New York Times and other newspapers for their treasonous exposure of three highly secret government programs that served as integral parts of America’s war against Islamic terrorists.

The October 11th indictment of Gadahn in the federal District Court for the Central District of California, however, suggests that political considerations no longer trump the loud dictates of justice.

The Gadahn indictment, only nine pages long, has been brought under 18 United States Code, Section 2381, which is a codification of the constitutional treason provision. The indictment is spare, but powerful.

The government begins with a recitation of the nature of al-Qaeda. It then alleges that bin Laden and al-Zawahiri have admitted they are the organization’s leaders, and that al-Zarqawi proclaimed he was the al-Qaeda leader in Iraq.

The indictment’s next paragraphs allege that the United States was attacked on September 11, 2001; that bin Laden admitted the attacks were al-Qaeda operations; that the organization is at war with the United States; that Congress authorized the President to use all necessary and proper force against the perpetrators of the attacks; that in July 2006 bombs were exploded in a London subway station; and that al-Zawahiri admitted those explosions were the work of al-Qaeda. He further admitted that Shehzad Tanweer was one of their operatives.

These allegations are designed to lay a factual basis for the charges that follow. In sum, the indictment alleges that al-Qaeda is a terrorist organization, that its leaders are terrorists, and that the United States is at war with them.

Paragraph 8 contains the indictment’s core allegation:

Beginning on a date unknown and continuing to at least September 11, 2006, defendant ADAM GADAHN, also known as "Azzam al-Ameriki" ("GADAHN"), a citizen of the United States, whose last known place of residence was in Orange County, within the Central District of California, owing allegiance to the United States, knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort, within the United States and elsewhere, with intent to betray the United States. In so doing, GADAHN committed the following overt acts witnessed by two or more witnesses. (My emphasis.)

All the requisite allegations for indictment/conviction of treason appear in this one paragraph: intent to betray the United States, by overt acts, witnessed by two or more people, giving and comfort to the enemy.

As to the requisite overt acts, the indictment sets forth five al-Qaeda video broadcasts made by Gadahn. In the October 27, 2004, video, Gadahn acknowledged that he "has joined a movement waging war on America and killing large numbers of Americans." He also made the following statements:

  • "Fighting and defeating America is our first priority…."
  • "September 11th...notified America that it’s going to have to pay for its crimes and pay dearly."
  • "Jihad is our path and jihad is the answer."
  • "People of America…you too shall pay the price for the blood that has been spilled…."
  • "People of America, I remind you of the weighty words of our leaders Sheik Usama bin Laden and Doctor Ayman al-Zawahiri that what took place on September 11th was but the opening salvo of the global war on America…The magnitude and ferocity of what is coming your way will make you forget all about September 11th."
  • "The streets of America shall run red with blood…casualties will be too many to count and the next wave of attacks may come at any moment."

In the September 11, 2005, video, he described the terrorist attacks of four years

earlier as "the blessed raids on New York and Washington." He also made the following statements:

  • "These communiques have been released to explain and propound the nature and goals of the world wide jihad against America and the crusaders and convey our legitimate demands to friend and foe alike, so that the former may join us on this honorable and blessed path, and so that the latter may acknowledge his crimes...."
  • "The call has gone out and the era of jihad and resistance has dawned in all its glory. As Sheik Usama has told you repeatedly, your security is dependent on our security."
  • "Yesterday, London and Madrid. Tomorrow, Los Angeles and Melbourne, Allah willing. And this time, don’t count on us demonstrating restraint or compassion."
  • "We love peace, but when the enemy violates that peace or prevents us from achieving it, then we love nothing better than the heat of battle, the echo of explosions, and slitting the throats of the infidels."
  • "When it comes to defending our religion, our freedom, and our brothers in faith, every one of us is Mohammed Atta, every one of us is Jamaal Lindsay, and every one of us is Mohammed Boyeri."

In the July 7, 2006, video, there were statements by Osama bin Laden, Ayman al-Zawahiri, AbuMusab al-Zarqawi, and Shehzad Tanweer. In that video, Gadahn referred to the recent capture and execution of two American servicemen in Iraq. He also made the following statements:

  • "So after all the atrocities committed by America...why should we target their military only?"
  • "It’s hard to imagine that any compassionate person could see pictures, just pictures, of what the Crusaders did to those children, and not want to go on a shooting spree at the Marines’ housing facilities at Camp Pendleton."
  • "When we bomb their cities and civilians like they bomb ours, or destroy their infrastructure and means of transportation like they destroy ours, or kidnap their non-combatants like they kidnap ours, no sane Muslim should shed tears for them. And they should blame no one but themselves."

In the September 2, 2006, video, Ayman al-Zawahiri also appeared and addressed "the American people in particular and all Western peoples in general." Al-Zawahiri introduced Gadahn as "our brother Azzam the American" and explained that Gadahn "talks to you as one concerned about the fate which awaits his people." Al-Zawahiri urged Americans to listen to Gadahn "because what he is talking to you about is serious and significant. He is talking to you about the fate which awaits every human, an extremely grave issue in which there is no joking, procrastination, or backtracking." Gadahn also made the following statements:

  • "So if you want to be on the winning side in this life and the next, and if you want your resistance to Crusader tyranny to truly count, then take the simple step I have just outlined...We send a special invitation to all of you fighting ... in Afghanistan…You know the war can’t be won and that the condition of America’s war machine is going from bad to worse."
  • "You know you’re considered...as nothing more than expendable cannon fodder, a means to an end...You know they couldn’t care less about your safety and well being and that the only thing that upsets your leaders when American forces suffer casualties is the damage these casualties do to their popularity and the popularity of the wars they started."
  • "Escape from the unbelieving army and join the winning side. Time is running out, so make the right choice before it’s too late and you meet the dismal fate of thousands before you."

In the September 11, 2006, video, there were statements by Osama bin Laden and video footage of the World Trade Center attack in 2001. The pictures of the World Trade Center attack were accompanied by the written statement: "The word is the word of the sword until the wrongs are righted." In that video, Gadahn referred to the United States as "enemy soil" and made the following statements:

  • "All the brothers who took part in the raids on America were dedicated, strong-willed, highly motivated individuals with a burning concern for Islam and Muslims."
  • "Look at the pilots, Mohammed Atta, Marwan Shehhi, Ziad Jarrah, Hani Hanjour. All of them had lived and studied in the West. All of them had the world within their reach, if they had wanted it. But how could they live with themselves, if they were to enjoy this worldly life while their Ummah burns."
  • "In hind sight, everything that al-Qaeda was doing was preparation for the Manhattan and Washington raids, and the expected crusader invasion."

This indictment speaks volumes in what it says and in what it doesn’t say.

The essential allegations are there: A jury could find from Gadahn’s express statements (overt acts), or infer from those statements, that he intended to betray the United States, and that in making them he gave aid and comfort to the enemies of the United States. (Obviously, the two-witness rule is easily satisfied.) In those allegations we see little more than a boilerplate treason indictment.

Not so readily apparent, however, is that like the four German (Chandler, Gillars, Best, Burgman) and one Japanese (D’Aquino) propaganda broadcasters, the Gadahn indictment does not allege any overt "acts" other than broadcasting. (As indicated in "Aid and Comfort": Jane Fonda in North Vietman, she did much more in Hanoi than merely make propaganda broadcasts.)

This is significant because one defense in those prosecutions (one that Tom Hayden unsuccessfully tried to use against me on the O’Reilly TV show) was that the broadcasters were protected by their First Amendment right of free speech – a defense that was, correctly, rejected in the World War II cases, especially Chandler v. United States and Gillars v. United States.

Chandler had argued that the overt acts charged in the indictment should not have been allowed to go to the jury. In a defense that would reappear in later broadcast treason cases, Chandler maintained that "mere words, the expression of opinions and ideas for the purpose of influencing people, cannot constitute an overt act of treason; that [he] had a right to broadcast, or otherwise disseminate to the American people, the ideas which coincided with the Nazi propaganda line; and that therefore his preliminary steps to that end – his attendance at conferences of commentators, his preparation of commentaries, his speaking into a microphone to make recordings – cannot be treasonable acts."

The First Circuit Court of Appeals rejected this argument:

There are occasional statements to be found in the books to the effect that mere words cannot amount to an overt act of treason. * * * That is true in the sense that the mere utterance of disloyal sentiments is not treason; aid and comfort must be given to the enemy. But the communication of an idea, whether by speech or writing, is as much as act as is throwing a brick, though different muscles are used to achieve different effects. One may commit treason by conveying military intelligence to the enemy, though the only overt act is the speaking of words. * * * The significant thing is not so much the character of the act which in fact gives aid and comfort to the enemy, but whether the act is done with an intent to betray. In Cramer v. United States the Court said:

On the other hand, a citizen may take actions which do aid and comfort the enemy – and making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength – but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. [My emphasis.]

The Court of Appeals firmly pointed out that this was not what Chandler was up to in World War II Nazi Germany:

In the present case, however, it cannot be said that what Chandler did was merely exercising his right of free speech in the normal processes of domestic political opposition. He trafficked with the enemy and as their paid agent collaborated in the execution of a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully. We have found no indication of a reluctance on the part of the framers of the Constitution to punish as treason any breach of allegiance involving actual dealings with the enemy, provided the case is established by the required two-witnesses proof. It is preposterous to talk about freedom of speech in this connection; the case cannot be blown up into a great issue of civil liberties. [My emphasis.]

In Gillars [Axis Sally], the United States Court of Appeals for the District of Columbia Circuit observed that Gillars had taken "part in psychological warfare against [the] United States by participating in recording of radio drama." The court then added:

While the crime [of treason] is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warfare, in the course of employment by the enemy in its conduct of war against the United States, to which the accused owes allegiance, may be an integral part of the crime. There is evidence in this case of a course of conduct on behalf of the enemy in the prosecution of its war against the United States. The use of speech to this end, as the evidence permitted the jury to believe, made acts of words. * * * ... words which reasonably viewed constitute acts in furtherance of a program of an enemy to which the speaker adheres and to which he gives aid with intent to betray his own country, are not rid of criminal character merely because they are words. [My emphasis.]

In light of Chandler, Gillars, and some of the other treason cases, the Justice Department is on solid ground in charging Gadahn’s broadcasts alone as treasonous overt acts.

Another significant fact about the Gadahn indictment relates to an argument made against the Holzers’ "indictment" of Jane Fonda in "Aid and Comfort": that Vietnam was not a declared war. However, in our book, we proved that a formal declaration of war is unnecessary before a charge of treason can be laid. Here again, the Justice Department is on solid ground in its indictment of Gadahn even though there has been no formal declaration of war by Congress against al-Qaeda.

If Gadahn is found and returned to the United States for trial, he will learn that neither the "free speech" nor the "declaration of war" defense, or any others, will help him—even though we may expect the legal left’s lawyers to defend Gadahn with every dirty weapon in their armory.

It will do them no good. If the United States gets its hands on Adam Gadahn –American spokesman for terrorists, accomplice to mass murderers, traitor to the United States – he will either be convicted by a jury of Americans, or, like that spoiled brat Taliban John Walker, make a plea bargain so as to avoid risking the much deserved death penalty.

And while the case of Islamic Adam is unfolding, we can hope that since the treason taboo has finally been lifted, other indictments will soon follow against those who recently have betrayed America’s secrets – surveillance, secret prisons, terrorist money trails – and who, with the requisite intent and overt acts, have provided "aid and comfort" to the enemies of the United States."

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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