Treading a treacherous path


As U.S. bombs pummeled North Vietnam in the summer of 1972, Oscar-winning actress Jane Fonda traveled to Hanoi to decry the American military campaign, her words of encouragement for Ho Chi Minh captured on news reels and seen back home by millions of outraged Americans.

Fonda was branded a traitor, her fiery speeches characterized as a classic example of offering "aid and comfort" to the enemy at a time of war. Yet Richard M. Nixon's law-and-order Justice Department never filed treason charges against the actress, whose war protests earned her the jeering nickname "Hanoi Jane."

Despite her Hollywood status, Fonda wasn't necessarily receiving star treatment. Treason, the only crime that is explicitly defined in the Constitution, is rarely invoked and difficult to prove, legal experts say. In a treason case, actions matter - not words - and even then, the hurdles are considerable.

That very challenge confronts top U.S. officials now as they decide what to do with John Walker Lindh, the 20-year-old California man captured fighting alongside hard core Taliban troops in Afghanistan. Prosecutors are weighing whether to file treason charges against Walker, who uses his mother's last name, or whether another crime would be a better fit. While they deliberate, he is being held on an American ship.

'It looks like a match'

Political figures from Democratic Sen. Hillary Rodham Clinton to Senate Minority Leader Trent Lott say treason would be the right choice. Even Sen. Barbara Boxer, a Democrat whose constituents include Walker's family and former neighbors in liberal, affluent Marin County, Calif., says that he should be charged.

"If you read the definition of treason," Boxer says, "it looks like a match to me."

Government prosecutors, who would carry the burden of proof, are more restrained. Justice Department officials say they are considering a range of possible charges for Walker, who is in military custody. President Bush could announce a decision soon after his return to Washington this week from a holiday vacation at his Texas ranch.

For the government, almost any crime other than treason would be easier to take to court.

"When you look at the treason definition, you usually say, 'Yeesh,'" says Mary M. Cheh, who teaches constitutional law and criminal practice at George Washington University Law School.

Robert F. Turner, associate director of the Center for National Security Law at the University of Virginia, says that since World War II, the government has been reluctant to pursue treason charges, in part because of political baggage that attaches to the charge.

"You may have a right to try someone, and decide you don't really want to do it," Turner says. "Treason is a fairly serious thing. As a policy matter, it strikes me that treason ought to be reserved for generals, not foot soldiers."

Few cases, fewer convictions

Fewer than 40 treason cases have been brought in the nation's history, with even fewer convictions. Benedict Arnold, the Revolutionary War turncoat whose name became synonymous with treason, fled to England before he could be charged under the laws of the time. Not even atomic spies Julius and Ethel Rosenberg were prosecuted for treason. Instead, they were executed after their convictions on espionage charges.

The most recent treason case was brought 50 years ago against a California-born man convicted of treason for assaulting American soldiers in Japanese prisoner of war camps during World War II.

Article III, Section 3, of the Constitution provides that treason shall consist only of levying war against the United States or in giving aid and comfort to its enemies. It also spells out what is needed for a conviction - "the testimony of two witnesses to the same overt act, or on confession in open court."

From the republic's inception, U.S. leaders purposely made treason a difficult charge to sustain. As James Madison recounted later, Benjamin Franklin told his fellow constitutional framers at the Federal Convention of 1787 that treason too often had been used as a tool to disable political opposition.

Franklin pressed fellow delegates to insert the requirement of two witnesses. He cautioned that "prosecutions for treason were generally virulent; and perjury too easily made use of against innocence," Madison said.

Even then, the Founding Fathers struggled to strike the right balance. Franklin's fellow Pennsylvanian, James Wilson, said that strict standard might not address real-world situations.

"Treason may be sometimes practiced in such a manner, as to render proof extremely difficult - as in a traitorous correspondence with an enemy,'" Wilson said, according to Madison's account.

Wilson's concerns proved prescient. Just two decades later, former Vice President Aaron Burr was charged with treason for allegedly writing to British officials, seeking money and warships to help him rally western states to secede from the Union. John Marshall, chief justice of the Supreme Court, presided over the trial. Burr was acquitted in 1807 because the government's case lacked the direct proof and witness statements required under the Constitution.

Partly because of its rarity, the formal charge of treason has conferred enduring infamy to many of those who have faced it. World War II broadcasters Iva Ikuko Togui D'Aquino and Mildred Gellars - known to American soldiers in Japan and Germany as "Tokyo Rose" and "Axis Sally" - both were convicted of treason after the war and served prison sentences.

The Idaho-born poet Ezra Pound was charged with treason for his Italian broadcasts that supported Hitler and Mussolini and decried the U.S. war effort. Instead of standing trial, Pound was declared insane and committed to a Washington, D.C., asylum.

'She didn't fire that gun'

For a time in the early 1970s, calls resounded from many quarters of America for Jane Fonda's name to join those ranks.

Fonda's opponents argued that she had offered aid and comfort to the North Vietnamese during her July 1972 trip to Hanoi, where she was accompanied by uniformed Vietnamese fighters and delivered 10 anti-American radio broadcasts. In one, she said that "Nixon will never be able to break the spirit of these people; he'll never be able to turn Vietnam, north and south, into a neo-colony of the United States by bombing, by invading, by attacking in any way."

Angry Americans said Fonda's actions fell in line with those of the World War II broadcasters who faced treason charges. But administration officials, who were eager to wind down the war effort and boost President Nixon's re-election campaign, viewed the case as a free-speech issue and were not eager to make a martyr out of a prominent anti-war activist.

"She didn't fire that gun," said William T. Mayton, an Emory University law professor, referring to the anti-aircraft artillary guns that Fonda was photographed posing on during her Hanoi trip. "She just sat on it. She was just making an anti-war statement."

Tomoya Kawakita is the last person in the United States to be charged with treason. Born in California, Kawakita had returned to his family's native Japan during the war and ended up working as a translator at prisoner of war camps, where he was accused of abusing American prisoners.

Convicted of treason after returning to the United States at the end of the war, Kawakita argued to the Supreme Court that he could not be guilty of treason, because he did not consider himself to be a U.S. citizen during his time in Japan. The court upheld his conviction, writing in 1952 that Kawakita could not claim a "fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor."

"An American citizen owes allegiance to the United States," the court wrote, "wherever he may reside."

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