« I'm All Ears. | Main | This Kind of Obituary Takes Guts ... Even If You're Dead. »
July 6, 2005
One Dares Call It Treason.
Perhaps Eugene saw something other than the WaPo article to which he linked, but I am hard pressed to conclude from that article that there's treason here. (To be clear: one or more of the cases could develop into a treason case, but I don't think the WaPo article fairly permits us to conclude now that any of them is "real" "treason.")
Treason requires that a prosecutor prove that an alleged traitor committed an overt act born of an intent to betray the United States and lending aid and comfort to the enemy. The overt act must be substantiated by the testimony of two witnesses.
In the headline case, that of the Iranian-born filmmaker, the WaPo article reports that the filmmaker was apprehended in a taxi containing washing machine timers. Certainly not a great situation in which to be caught, but a "real" case of "treason?" The WaPo article doesn't really suggest anything about the filmmaker's intent, or whether he even knew the timers were in the taxi. (At one point the article implies the car was the filmmaker's; at another point it references a claim that car was a taxi that belonged to someone else.) If it develops that the timers belonged to the filmmaker, or that they were the taxi driver's but the filmmaker knew they were there and traveled in the taxi notwithstanding, then we might be in a position to surmise something about the filmmaker's intent. Right now, though, we really have no idea.
Another of the apprehended Americans, the article reports, is "suspected of high-level ties to Abu Musab Zarqawi." It's not "real" "treason" to have "ties" to somebody. It's "real" "treason" to commit an overt act of betrayal that gives aid and comfort to the enemy. Did this suspect commit such an act? Maybe ... but the WaPo article doesn't even hint at what it might be.
Of two of the others the article says only this: "One of the Iraqi-Americans allegedly had knowledge of planning for an attack and a second possibly was involved in a kidnapping." Each of these certainly could develop into a case of treason, but does the article supply enough to allow us to call them "real" cases of treason now? Hardly.
(Of the fifth case, the only information in the article is that the defendant was apprehended for "suspicious activity." Eugene couldn't have had that one in mind when he called these cases "the real thing.")
A charge of treason is serious business, and it has a precise legal definition. These guys sound like they are in some serious trouble. But can we now say that they are "traitors?" Nope.
UPDATE: The problems are basically the same, incidentally, if the government's theory is that one of these defendants "levied war" against the United States. The government would still need proof of an overt act of levying war by two witnesses, and an intent to betray. Maybe there's such a case against one or more of the defendants ... but it'd take a good deal more than the threadbare information in this WaPo story to sustain such a theory.
Posted by Eric at July 6, 2005 9:39 PM
Trackback Pings
TrackBack URL for this entry:
http://www.isthatlegal.org/cgi-bin/mt33/mt-tb.cgi/244.
Comments
I'm not sure how the case where someone "allegedly had knowledge of planning for an attack" could be called treason, even if it's true. Can having knowledge of something be an overt act?
And, if it was treason, how could there be a question as to whether they'd be tried by an Iraqi or US court?
Finally, he forgot to write "Heh". I feel cheated.
Posted by: Mojo at July 6, 2005 11:35 PM
Following up on what Mojo said, I'm not clear on who the treason is supposed to be against. Iraq is a sovereign country, at least in the eyes of the US government, which is what matters here. If, say, these five guys were on their way to blow up Iraqi police stations, would that be treason against the United States? It is enough that the "enemy" adhered to be one that the United States also opposes, even if the overt acts are not directed at the United States?
Further, I waded through the treason article you linked to, and all of the cases seemed to relate to the concept of "enemy" as a foreign government. (That is, someone we could declare war against.) It seems a stretch to consider gangs of thugs unaffiliated with a present or former government as an "enemy".
Posted by: David Weigel at July 7, 2005 7:23 AM
So David, we should be treating these all as simple law enforcement matters?
Posted by: Al Maviva at July 7, 2005 9:53 AM
I don't get your point, Al. Charging someone with treason against the United States in this instance would be applying a law enforcement solution, and in this case (on the thin facts we have), it's an inappropriate one.
Posted by: David Weigel at July 7, 2005 12:31 PM
Eric and all, Cyrus Kar is an acquaintance/friend of my boss, Matt Welch. Here's Matt's post on Kar from Hit & Run:
Cyrus Kar is a 44-year-old documentary filmmaker who lives in my neighborhood. An immigrant from Iran who came here at age nine, Kar served for four years in the U.S. Navy, supports the war in Iraq, and sleeps under a large American flag.
Link is: http://www.reason.com/hitandrun/2005/07/wrong_place_wro.shtml#010082
The story Matt links to goes quite a bit farther in establishing the innocence of an ex-Navy possibly Republican American citizen.
Posted by: Daniel Koffler at July 7, 2005 4:20 PM
Since outing a secret agent is a criminal offense why isn't Robert Novak in jail instead of the Judith Miller, who didn't even write a story on Valerie Plame. Isn't that treason?
Posted by: Jim Duff at July 7, 2005 4:38 PM
Jim,
No, it isn't.
Posted by: Eric at July 7, 2005 5:02 PM
I'm glad that EV concedes this point in an update to his original post, but his concession leaves me a little cold:
"Naturally, one can't make a definitive judgment based on circumstantial evidence in a newspaper article. But it does sound like treason, though of course it's possible that the ultimate conclusion may sound different from the first report."
Let me get this straight. A highly respected law professor who runs the most frequently-visited law-related blog on the internet posts his opinion that a newspaper article suggesting five American citizens have committed treason - a high crime with a specific legal definition - "[s]ounds like the real thing, not hyperbole." When called to task for expressing this view despite the fact that the evidence falls far short of meeting the applicable legal standard, the same highly respected law professor says that although one can't reach a "definitive judgment" based on the evidence cited, it still "sounds like" treason to him.
Does Professor Volokh possess some special sort of radar that allows him to detect real traitors in the absence of sufficient evidence? Perhaps this is the same instrument he uses to determine that thousands of Iraqis swept into custody, about 80% of whom the U.S. government itself acknowledges were apprehended mistakenly, are in fact unlawful enemy combatants subject to indefinite detention without legal process.
Sigh.
Posted by: Neal at July 8, 2005 12:14 PM
The New York Times this morning (or the AP, rather) is reporting that at least one of these men, the Iranian-American film maker, has been released. This, we are told, shows the system works- that he was held for two months w/o charges. I wonder if Volokh will mention this?
Posted by: matt at July 10, 2005 12:56 PM