When two recent events (coincidentally occurring on the same day) are compared, they provide a hint of where the Department of Justice may be headed in future prosecutions of American terrorists.
One is the John Walker Lindh case that concluded with him being sentenced to twenty years for his activities on behalf of the Taliban and al-Qaeda. The other is the indictment in Oregon of the terrorist group now referred to as the "Portland Six."
As to Lindh, based on what he was alleged to have done, I and others urged that Taliban John be indicted for treason (see www.talibanjohn.info). Given the four elements necessary to prove that crime – (1) an intent to betray the United States, which can be inferred from (2) an overt act, (3) testified to by two witnesses, (4) that gave aid and comfort to the enemy – and given that he was charged with some two score overt acts, there was no question that a treason indictment could have been brought and, if it had been, a jury could have convicted Lindh.
But Lindh was not indicted for treason. In the end he pleaded guilty to two federal felonies – providing "material support" to terrorists and to carrying a weapon during the commission of a federal crime. But not to treason. My view was then, and remains, that not only could Lindh have been indicted and convicted for treason, but that he should have been. I believed that a treason indictment would not only have given the government more leverage in the plea bargaining process, but that it was morally imperative to label Lindh a traitor. I believed also that by not indicting Lindh for treason, the government sent the wrong message to our countrymen, to our friends, and – most significantly – to our enemies.
But in the case of the Portland Six, the government may be moving closer to calling a traitor a traitor.
On the day Lindh was sentenced, several American citizens were indicted in Oregon, not only for the usual – and deadly – "material support and resources" crime that nailed Lindh, but also for conspiracy to levy war against the United States.
If this language sounds familiar, it’s because similar phraseology appears in Article III, Section 3, of the United States Constitution, which defines "treason":
Treason against the United States shall consist only in levying war against them, or, in adhering to the enemies, giving them aid and comfort.
Although much of the focus of the treason discussion in the last year has been on the "adhering" prong of the crime, in it’s indictment of the Postland Six the Department of Justice has invoked the other prong of the constitutional crime of treason – sort of.
There is another federal statute – which I call "Treason Lite" – that makes it a crime to conspire to "levy war against the United States." That’s what the Portland Six were charged with. That statute is Title 18, United States Code, Section 2384. The pertinent part provides: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them . . . they shall each be fined under this title or imprisoned not more than twenty years, or both.
While Section 2384 stops short of a constitutionally based charge of treason, its use against the Portland Six may represent the government’s movement toward treason indictments in appropriate cases (which this one probably isn’t, because of the difficulty of proving "aid and comfort").
For the moment, then, "Treason Lite" will have to do. And it will do very nicely because it is even easier to prove than constitutional treason. No overt act giving aid and comfort, no two-witness proof, is necessary to convict. To prove a federal conspiracy the government need only prove an agreement between at least two people to commit a federal crime, and that any one of them performed an act – even a perfectly legal act – in furtherance of that agreement.
In the Portland case, the defendants are charged with agreeing to fight for al-Qaeda, and, to that end, training with weapons (as well as committing other acts). It appears that documentary and other evidence exists to prove both the agreement and the overt acts. If true, the defendants will be convicted – either after trial, or, most likely and as in the John Walker Lindh case, by a plea bargain.
Rejoice in the fact that the Portland Six are going to prison for a long time, but celebrate, also, the possibility that, with their indictment for Treason Lite, the government is edging ever closer to charging American terrorists with the crime they richly deserve: Constitutional Treason.