SAN DIEGO, Calif. - Sen. Hillary Clinton of New York didn't hesitate to call John Walker a traitor when she was interviewed Sunday on Meet the Press. The American was found last week with the Taliban in Mazar-e Sharif, Afghanistan, and was taken into U.S. custody.
The crime of treason requires a prosecutor to prove both an intent to betray the United States and an act of levying war against the United States or giving aid and comfort to the enemy. Our Constitution mandates that the act be proved by the testimony of two witnesses or a confession in open court.
That Mr. Walker, 20, was found in the company of the Taliban, without more evidence, is not sufficient, as circumstantial evidence cannot serve as the basis for proving a treasonous act.
Further, the Supreme Court has defined "enemy" as the subject of a foreign power in a state of open hostilities with the United States. Interestingly, it is the Northern Alliance, not the Taliban, which has a seat at the United Nations and is recognized as the lawful government of Afghanistan.
When Mr. Walker went to Afghanistan, the United States and the Taliban were still on friendly terms.
In a new book published in Paris, Bin Laden: The Forbidden Truth, former French intelligence officer Jean-Charles Brisard and journalist Guillaume Dasquie document an amicable relationship between the president's father, George W. Bush, and the Taliban. The book quotes John O'Neill, former director of anti-terrorism for the FBI, who thought the State Department, acting on behalf of U.S. and Saudi oil interests, interfered with FBI efforts to track down Osama bin Laden before Sept. 11.
The State Department and Pakistan's Inter-Services Intelligence agency financed, armed and trained the Taliban in its civil war against the Northern Alliance to make the region safe for U.S.-based corporate oil interests. California-based UNOCAL was negotiating for an oil pipeline to run through Afghanistan and Pakistan, but it pulled out of the deal because of feminist opposition to the Taliban's treatment of women after President Bill Clinton bombed al-Qaida training camps in retaliation for the 1998 U.S. embassy bombings in East Africa.
Deputy Defense Secretary Paul Wolfowitz said earlier this week that Mr. Walker was lucky he was a U.S. citizen and was captured by the United States. The implication was that if the Northern Alliance had captured him or if he were a non-U.S. citizen prisoner of the United States, he wouldn't have been so humanely treated.
The United States has signed, ratified and implemented the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It prohibits securing information by torture, even in wartime. Mr. Walker is reportedly cooperating with U.S. military authorities; it is hoped he is being treated humanely as required by the torture convention and the Geneva Convention Relative to the Treatment of Prisoners of War.
Mr. Walker does not come under the jurisdiction of a military court under the Uniform Code of Military Justice, as he is not in the U.S. military. He cannot be tried in one of the Bush administration's new secret military tribunals, as they apply only to noncitizens. Mr. Walker has not renounced his U.S. citizenship.
We don't know whether Mr. Walker was simply an idealistic kid who joined the Taliban when it was still friendly to the United States in order to help build a pure Islamic state. We don't know whether he acted voluntarily, or what his mental state was when he was captured.
The U.S. government may decline to file charges against Mr. Walker if he provides sufficient information to help the anti-terrorism effort. But if charges are levied against him, we should wait until the evidence comes out before judging him.
Marjorie Cohn, an associate professor at the Thomas Jefferson School of Law in San Diego, teaches criminal law and international human rights law.