Thursday, October 12, 2006

A New Indictment for Treasonous Speech

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.


Anonymous said...

If captured and convicted, what do you think the punishment would be?

Based on my understanding of the case, Gadahn does not appear to be death penalty eligible.

I wonder if Gadahn would be given a longer sentence than Iva Toguri, a.k.a. Tokyo Rose, who was sentenced to ten years for her treason conviction.


Tom W. Bell said...

rxwhite: I'm not sure why you say he would not be "eligible" for the death penalty. The entirely of 18 USC s. 2381 reads, "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States." I cannot say from that what he is *eligible* for, though I do agree that the death penalty looks unlikely.

Pyrthroes said...

Has not CNN admitted that during the first Gulf War its so-called jounalists in Baghdad under Saddam Hussein were there on Ba'athist sufferance, in effect employed by him at one remove as propaganda agents to subvert America's war effort?

Why was this not treason, not only by conscious and willing Leftist American agitators against Bush I, but by CNN, their enabling media-organization itself? We assert that no principled distinction can be made. And that, of course, leads on to "fauxtography" and other recent scandals, wherein editors and newsrooms hired known terrorists, or sympathizers (no difference, who lights a fuse or pulls a trigger), to feed slanderous lies to the American home front virtually on a daily basis? Columbia University: Proud home of murderous anti-Semites, subterranean Mullahs, faculty eulogizing thugs from Castro and Chavez to Ahmadinejad, Kim Jong-il, Mugabe and their ilk.

Public awareness of scurrilious and seditious attacks precedes John Kerry's grotesque performance thirty years ago... it is insufficiently appreciated that this sitting Senator's full-scale statue holds a place of honor in Hanoi's Museum of the Communist Revolution.

Treason? In any previous culture, any political milieu, any and all such creeps would have been dealt with very harshly. No healthy society concerned with its survival can let such bacilli fester in its body politic indefinitely. In a democracy, this is not a matter of Free Speech or partisanship. Anyone wishing to state a case may do so, but urging rape and murder of fellow citizens while disparaging their fighting forces in wartime is so far beyond the pale that even an insular, self-indulgent Supreme Court might better rethink its doofus tendencies.

Bart DePalma said...

Professor Bell:

I would disagree with the use of the extent of the defendant's corroboration with the enemy to determine whether the speech itself is protected under the 1st Amendment. Rather, the questions of fact of whether the defendant intended to provide aid and comfort to the enemy and whether the speech in fact provided such aid and comfort should be left to the jury in a treason trial.

I would suggest that the 1st Amendment should treat propaganda like slander or libel. If the defendant broadcasted a statement of fact (not an opinion) which he or she knew was false to a third party, the speech should fall outside the First Amendment.

Under this construct, treason would include an American citizen who intentionally broadcasted to two witnesses a statement of fact which he or she knew was false and which he or she knew provided aid and comfort to the enemy.

In sum, treason should include American citizens providing aid and comfort to the enemy on their own initiative. As to the actual damage done by the treason, I do not see the effective difference between the identical enemy propaganda broadcasted by an American citizen on his or her own initiative or in coordination with the enemy. American citizens spreading lies with the intent to destroy the war effort and give victory to the enemy in a war are traitors.

Anonymous said...


As I understand from your law review article, you contend that even disloyal speech is (or ought to be) constitutionally protected.

1. Why do you think this is right as a matter of policy?

2. What is you authority for this claim as matter of law?

Tom W. Bell said...

Bart: You essentially describe the now-(probably)-defunct claim of seditious libel. For better or worse, it looks to be a dead letter in the law, these days. But, at any rate, you should note that the law of treason does not cover only falsehoods. Treasonous propaganda can dwell on uncomfortable truths or, more likely, simple matters of opinion.

Michael: 1) because I think it rather likely that the costs of prosecuting treasonous expression outweigh the gains; and 2) because there exist less overbroad and speech-chilling ways of combatting treasonous expression.