A grand jury in Orange County filed a charge of treason against Adam Yahiye Gadahn yesterday. That marks him as the first person charged with treason against the U.S. since 1952. If captured and found guilty, Gadahn could face the death sentence.
The indictment accuses Gadahn of acting as a propagandist for al-Qaeda in several of that group's videos. He allegedly announced that he had joined al-Qaeda and claimed, "Fighting and defeating America is our first priority. . . . The streets of America shall run red with blood." Gadahn also supposedly called on Americans to convert to Islam and urged U.S. soldiers to switch sides in the Iraq and Afghan wars. On the basis of those and other allegations, the indictment concludes that Gadhan "knowingly adhered to an enemy of the United States, namely, al-Qaida, and gave al-Qaida aid and comfort . . . with intent to betray the United States."
A treason charge in the War on Terror? Who would have thought of that? Well, um, I would have. Indeed, I wrote a law review article on the topic: Treason, Technology, and Freedom of Expression, 37 Ariz. St. L. J. 999 (2005) [PDF]. As I said there, "Courts have already held that an American employed as an enemy propagandist may justly suffer prosecution for treason. Any American employed as a propagandist by the al-Qaeda terrorist network would doubtless risk the same fate." Id. at 1004.
I must admit, though, that I did not expect U.S. officials to finger an actual agent of al-Quaeda. I reasoned that, "Contemporary terrorist networks . . . tend to generate and distribute propaganda through relatively informal means. Al-Qaeda disseminates its message through volunteers on the street or in the press, for instance . . . ." My paper thus spends a fair amount of time wondering whether the law of treasonous expression reaches sympathetic non-agent volunteers of U.S. enemies. I find that a close and interesting question, one that can tell us a lot about the scope of our constitutional freedoms of expression. Assuming that they can prove he acted as an employee of al-Quadea, however, Gadahn's prosecutors won't face that particular problem.
That is not to say that Gadahn's prosecutors will have an easy go of it. They will have to prove that Gadahn owed allegiance to the U.S., that he adhered to its enemies, and that he intentionally committed an overt act giving them aid and comfort. Furthermore, prosecutors will have to provide two witnesses to any overt act of treason they try to pin on Gadahn (or, less interestingly, get him to confess in open court).
The first bit might cause prosecutors some trouble. Gadahn apparently left the U.S. in 1998. Assuming that he thereafter renounced his U.S. citizenship, he no longer owed the U.S. any allegiance. (Non-citizen residents of the U.S. owe it allegiance, granted, but the indictment appears to cite only acts that Gadahn committed while living abroad.) If Gadahn does not owe allegiance to the U.S., after all, he cannot commit treason against it. Did he renounce his U.S. citizenship? That remains to be seen. Notably, though, it is not quite as easy as, say, simply burning a flag.
Assuming, as seems likely, that Gadahn did willingly star in al-Queda propaganda videos, prosecutors will have little trouble showing that he adhered to enemies of the U.S. and intentionally committed an overt act giving them aid and comfort. The treason clause affords a definition of "enemies" easily broad enough to encompass terrorists intent on killing American civilians. Getting two witnesses to Gadahn's overt acts treason will probably not prove too tricky, either. Judging from treasonous expression cases following World War II, the testimony of any two recipients of Gadahn's propaganda should suffice. As the court in Burgman v. United States observed of the propaganda broadcast recordings before it: “They were not merely testimony concerning the acts of treason; they were the physical embodiment of the very acts themselves." 188 F.2d 637, 639 (D.C. Cir. 1951). On that logic, if you've witnessed Gadahn's propaganda, you have witnessed his treasonous act.
Bottom line: If prosecutors can catch Gadahn, they have a fair chance of convicting him of treason.