Saturday, October 14, 2006

Prosecuting Treason and the First Amendment: the Case of Adam Gadahn

Front Page, 10-13-06: "[W]ords 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 [of treason]"---United States Court of Appeals for the District of Columbia [Cited in Front Page]

LA Times, 10-14-06: "Trafficking with the enemy" — in the sense of close collaboration, rather than just independent expression of support — "is wholly outside the shelter of the 1st Amendment".....U.S. law has long recognized that war can include not just war against other nations but conflicts against other armed groups, such as domestic rebels or Indian tribes. War with a transnational terrorist organization — especially one that's also working with the remnants of the old Afghan and Iraqi regimes — would qualify. [Full text]

Counterterrorism Blog, 10-13-06: "A little known provision of the Immigration and Nationality Act, 8 USC 1481, that has been on the books for decades but is an even more rarely utilized statute than the treason law (and possibly may never have been used in an adversarial, involuntary case), allows for both naturalized and native-born US citizens to be stripped of their citizenship if they engage in certain activities. Among the most notorious such activities, as defined in subsection (a)(7) of the statute, are: “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.” [Cited in Counterterrorism Blog]

A professor of Constitutional Law, Eugene Volokh, has written an informative article in the LA Times (10-14-06) about the charge of treason against the American Al Qaeda operative Adam Gadahn, aka Adam Pearlman, aka Azzam the American.

Gadahn has appeared in a series of propaganda videos (Washington Post 10-11-06) for Al Qaeda. See here (ABC News, 9-12-05), here (MEMRI #1281, 9-6-06), and here (MEMRI #1201, 7-11-06).

Volokh examines the difference between Constitutionally protected dissenting free speech and making propaganda for the enemy. The article is titled, "Is It Treason?"

Professor Volokh writes:

AN AMERICAN CITIZEN broadcasts propaganda for the enemy, intending to help defeat the United States. The government indicts the citizen for treason. That's the Adam Gadahn story from Thursday's newspaper — but it's also the story of Tokyo Rose, Axis Sally and other Americans after World War II....

The most famous one, who was linked to the Tokyo Rose broadcasts, was later exonerated and eventually pardoned, but the legal principle established in those cases remains. In the words of one court, "Collaborat[ing with the enemy] in the execution of a program of psychological warfare designed … to weaken the power of the United States to wage war successfully" — even if the program fails — may be treason.

The substantive case against Gadahn appears strong. The Constitution defines treason narrowly, as "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort"; courts have made clear that "adhering" to the enemy means purposefully advancing the enemy's cause. But Gadahn fits within this narrow definition. Because propaganda has long been a war-making tool, conspiring with the enemy to help it recruit or demoralize is just as punishable as helping it build a bomb.

Moreover, this principle applies to the war against Al Qaeda as much as to the war against the Axis. U.S. law has long recognized that war can include not just war against other nations but conflicts against other armed groups, such as domestic rebels or Indian tribes. War with a transnational terrorist organization — especially one that's also working with the remnants of the old Afghan and Iraqi regimes — would qualify....

Some have argued that the 1st Amendment protects even propaganda on the enemy's behalf, and it's true that the Constitution does generally protect expressions of hostility to the United States — even ones aimed at harming morale and helping our enemies. Only advocacy that's intended to and likely to cause imminent illegal conduct — not just desertion or treason sometime in the future — is generally punishable.

But Gadahn, like the 1940s propagandists, isn't being prosecuted just for expressing his personal views. He's accused of entering into a conspiracy with our enemy, a conspiracy in which the enemy tries to kill Americans and Gadahn acts as the enemy's tool. As one post-World War II court put it, "Trafficking with the enemy" — in the sense of close collaboration, rather than just independent expression of support — "is wholly outside the shelter of the 1st Amendment."

Still, the government may face a procedural difficulty trying this case. The Constitution makes treason a hard crime to prove: "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." To convict Gadahn, the government must catch not just him but two witnesses who can testify to his participation in the videos, unless it can persuade him to confess in open court. [Full text]

Counterterrorism Blog and Front Page Magazine have also written about the definition of treason in American law and the treason charges against the accused traitor, Adam Gadahn.

I think there are probably other Americans who have been secretly and intentionally betraying America by communicating with America's terrorist enemies and by writing propaganda in support of various terrorist organizations and/or the remnants of terrorist governments.

According to the First Circuit Court of Appeals, the First Amendment is not a defense against treason:

"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." [Cited by Front Page]

The Court of Appeals has observed that an American named Chandler who went over to the Nazis was not just exercizing his First Amendment rights:

"[I]t 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."

[Cited by Front Page]

The United States Court of Appeals for the District of Columbia Circuit ruled that Gillars [Axis Sally] had taken "part in psychological warfare against [the] United States by participating in recording of radio drama." [Cited by Front Page]

The court said:

"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." [Cited by Front Page]


According to the Counterterrorism Blog,

"A little known provision of the Immigration and Nationality Act, 8 USC 1481, that has been on the books for decades but is an even more rarely utilized statute than the treason law (and possibly may never have been used in an adversarial, involuntary case), allows for both naturalized and native-born US citizens to be stripped of their citizenship if they engage in certain activities. Among the most notorious such activities, as defined in subsection (a)(7) of the statute, are: “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction”....

"What is the value in stripping a US citizen terrorist of their citizenship? The terrorist then becomes an alien. In the case of a naturalized citizen, they revert back to the nationality they held before naturalization and ultimately subject to potential deportation to their home country. In the case of a native-born US citizen, they would become a stateless alien, unless some other country conferred citizenship upon them or they held dual-nationality. Even with a stateless alien, such a person also, upon serving any criminal sentence, would be subject to deportation proceedings and could be detained during those proceedings and could be detained until a final removal order is obtained. If they are determined to be a national security threat, they could even be detained, indefinitely, after a final removal order is obtained if they could not be physically deported because no country would take them. For those stripped of their citizenship who are already outside the US, they could be barred from entering this country. For serious terrorist threats, therein lies another rationality behind the effort beyond the fact the law allows for it." [Full article]

According to an American intelligence official, intelligence agencies would like to know "the nature and extent of support the hijackers had while in the United States, not to mention the nature and support in Germany and elsewhere..."

Perhaps our terrorist enemies are not just foreign operatives but domestic traitors who adhere to our enemies and give them aid and comfort...

Down with the traitors hiding in our midst!

This is Snapple's opinion!

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