WASHINGTON -- Could a case for treason be made against John Walker, the American Taliban? The legal record suggests "maybe."
Would U.S. authorities want to make such a case? The historical record -- barely 30 cases in 225 years -- pronounces a firm "no."
The last person convicted of treason was Tomoya Kawakita, a Japanese-American sentenced to death in 1952 for tormenting American prisoners of war during World War II. Even such a clear-cut case created qualms; President Eisenhower commuted Kawakita's sentence to life imprisonment.
The difficulties of meeting the tough constitutional standards -- two witnesses or a confession in court to "levying war" against the United States -- help explain why treason is rarely prosecuted.
No one at Aaron Burr's 1807 trial doubted that he wanted to make himself emperor of Mexico, and probably part of the United States. It's just that planning war was not the same as "levying war," said Chief Justice John Marshall, who acquitted Burr.
Even when convictions are won, they can come back to haunt the authorities. Convicting propagandist "Tokyo Rose" in 1949 was easy enough. When it emerged years later that she had remained a loyal U.S. citizen who secretly plotted against her Japanese masters, an apologetic President Ford pardoned her.
Two witnesses possible
Walker could meet the two-witness standard if he was seen bearing his AK-47 rifle on the side of the Taliban.
Proving whether that constituted "levying war" is another story. Walker joined the Taliban in March, before anyone had any idea the sides would be at war. He could argue that to desert after Sept. 11 would have guaranteed his death.
President Bush said Monday he has not "decided on what to do with Mr. Walker" but would closely listen to the recommendation of law enforcement agencies. Bush said he had not read transcripts of Walker's interviews with U.S. officials.
The government also would have to prove that Walker's commanders made clear to him he was fighting Americans, said John Burris, a prominent California civil rights lawyer.
"He could easily have thought he was defending the Taliban against internal enemies," said Burris.
Walker could argue that Congress has not formally declared war, although that would likely fail, said Sean Murphy, a law professor at George Washington University.
"We have the resolution by the president, authorized by both houses of Congress," he said.
Being held on ship
U.S. authorities, who say Walker is now being helpful, have not announced their plans for the 20-year-old former Fairfax, Calif., resident. On Friday, he was moved from a forward operating base in southern Afghanistan to a Navy ship in the Arabian Sea.
He's not about to walk away, though.
"History has not looked kindly upon those who have forsaken their countries to go and fight against their countries," Attorney General John Ashcroft has told senators.