It's Hard to Be a Traitor
Will the Constitution save John Walker from a treason conviction?

The Bush administration is wrestling with the question of whether to charge the American Talib, John Walker, with treason. The president said this week that the administration wants to work out all the angles before making a decision, and one can understand the need for reflection. The American founders set treason apart from all other crimes. They were acutely aware of the way monarchies had abused treason law. In America, they made it especially difficult for charges of treason to be bandied about. But the plain language of the bedrock about treason in this country is unlikely to deliver a good night's sleep to young Walker.

For starters, the founders forbade Congress and the courts from tinkering with treason. The founders themselves defined the crime of treason--and only that crime--in the Constitution itself. Treason against the United States, they said, shall consist only in levying war against them, or adhering to their enemies, giving them aid and comfort. They prohibited ordinary authorities from taking a confession to the crime of treason, saying any confession to treason had to be made in open court. Absent a confession, they erected special barriers to successful prosecution, saying conviction would require the testimony of two witnesses to the same act. And not just any act. They specified it had to be overt.

But one of the men he'd approached alerted President Jefferson, and Burr was eventually brought to trial. Chief Justice John Marshall, who heard the case and wrote Ex parte Bollman, made clear that he understood why the founders had set treason into a special category. "There is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry," Marshall wrote, before referring to the limitations prescribed in Article III.

"To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States." Marshall ruled. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed."

This distinction led to the abandonment of the treason case against Burr's alleged co-conspirators. But in making the ruling, Marshall issued a warning about treason that carries great force down through the centuries. "It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country," Marshall wrote. "On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."

After springing Bollman and Swartwout, Marshall went to Richmond to preside at the trial of Burr himself, at which there came into focus the importance of the constitutional requirement of two witnesses to the same overt act. That kind of evidence couldn't be marshaled against Burr, who lived out his remaining decades in a kind of extrajudicial disgrace.

Nor is it any protection to have committed the treason abroad, a point established in the case of Tomoya Kawakita, a young Japanese-American who on the eve of war went to Japan to visit and was prevented by the outbreak of war from returning. During the war, the court noted, he reached his majority in Japan, changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States, served as a civilian employee of a private corporation producing war materials for Japan, and brutally abused American prisoners of war who were forced to work there. He was brought up on the treason charge when he returned to America on an American passport. In sustaining his conviction, the Supreme Court established that an American citizen owes allegiance to America wherever he may reside.

Mr. Lipsky is a contributing editor of The Wall Street Journal. This is his final weekly column for OpinionJournal.

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