So right here in the basement, they're torturing us and killing us. So we might as well surrender, so at least we might have a chance to...
When the first pictures of a filthy John Walker emerged from a prison cell in Afghanistan, a controversy erupted over what to do about him. Is he or isn't he guilty of treason? Where could a fair trial be held? Talk to Elizabeth Rindskopf-Parker about the what could await John Walker legally.
Elizabeth Rindskopf-Parker sits on the American Bar Association President's Task Force on Terrorism. Previously, she was the general counsel at the National Security Agency and the Central Intelligence Agency.
USATODAY.com : Why are government officials having so much trouble deciding what to do with John Walker? Is there a disagreement over what constitutes "treason"?
Elizabeth Rindskopf-Parker: No, there isn't a disagreement over what the law says. There's also a provision in the constitution as to how treason is proven. But we don't yet have a full understanding of the facts.
Lima, Ohio : Walker took up arms against his own country in a declared war. How could anyone argue that he is not guilty of treason? What would be their grounds for such argument, and what precedent would they use?
Elizabeth Rindskopf-Parker: We have to argue immediately with the assumptions that the questioner makes. We don't know what Walker did, but even more important, we don't know what he understood he was doing. So, for example, if in Afghanistan with virtually no news from outside under the Taliban, he thought he was fighting an internal group (the Northern Alliance), those facts would not be consistent with the questioner's assumption that he took up arms against the United States. Having said that, people need to understand that treason has a very, very high standard of proof.
Winston Salem, NC : What legal precedents will determine John Walker's fate in the courts?
Elizabeth Rindskopf-Parker: Treason has been used very seldom. Only a handful of cases exist. So I think the question has to be looked at first in terms of what is required to make out a case, and there we look at the applicable federal criminal code statute, and even more importantly the constitutional provisions, which require a very high standard of proof. Specifically "the testimony of two witnesses to the same overt act or a confession in open court". There's a reason why this standard is so very high. As questioners will remember, those who wrote the Constitution were themselves considered to be guilty of treason against Britain. "Treason" has been an offense historically that has a political and a speech quality that had allowed it, at the time of the Constitution, to be used in an abusive and oppressive fashion. The framers were very concerned that that tradition not continue when they wrote the Constitution. So they created a constitutional framework that made prosecutions deliberately difficult to bring.
Philadelphia, PA : The pertinent questions concerning John Walker is whether he was forced to continue to be a Taliban suppoter after the United States started it's campaign against the Taliban; (i.e. Was he in danger of phyisical harm [maybe even death] from the Taliban himself if he refused to cooperate with them?) and is there any CONCRETE physical evidence that he actually took up arms and fought against the United States during the conflict?
Elizabeth Rindskopf-Parker: That's an excellent question, and that's the question that senior administration officials are trying to answer, because those are the questions we have to have an answer to before we know what legal response is appropriate.
Kalaheo, Hawaii : I don't believe that the U.S. government should spend the time and money for a treason trial for John Walker. My U.S. Passport states: LOSS OF NATIONALITY: You may lose your United States nationality by being naturalized in, or by taking an oath or making a declaration of allegiance to, a foreign state, or by serving in the armed forces or accepting employment under the government of a foreign state. John Walker not only served in the armed forces of a foreign state, he served in the armed forces of a foreign state which was in engaged in a war of terrorism against the United States. John Walker forfeited all of his rights as an American citizen when he chose to join with, and fight for enemies of the United States. Shouldn't his nationality be revoked, and he shouldn't he be shipped back Afghanistan to stand before the military tribunal along with other captured Taliban war criminals?
Elizabeth Rindskopf-Parker: This is an interesting question. There again, however, we as a nation are very careful in interfering with the very important rights citizenship confers. In peacetime, the efforts required to renounce one's citizenship are little short of extraordinary (I actually represented a man years ago who was knows as "the man without a country"). But even if circumstances warrant loss of citizenship and the rights it carries, there are further practical considerations that have to be borne in mind. We have to find a country that would receive such a person, and I think finally (again, speaking practically) this may not be the type of thing we want to do if John Walker is indeed someone who knowingly participated in terrorist activities. The question then becomes what do we prosecute him for, and where? The where is answered by either civilian courts or the potential of the tribunals being discussed. Frankly, there is precedent for prosecuting U.S. citizens before a military commission, but I'm not certain that's contemplated in the current order.
Washington DC : How many individuals have been charged with treason over the history of the US? Of this group how many have been convicted and what has been the range of sentences?
Elizabeth Rindskopf-Parker: Only a handful. The conviction rate has not been high, because the proof standards are so very difficult.
Mebane, North Carolina : What can legally be used as evidence in a court of law concerning his actions?
Elizabeth Rindskopf-Parker: Again, this question raises two issues: What facts will we be able to identify, and how will we prove them? There one has the options of live witness testimony or documents, and always in this type of a context concerns rise about protecting sensitive sources. But I don't think that's any more or less an issue with Walker than it would be with others.
USATODAY.com : Does being a traitor depend on an official declaration of war?
Elizabeth Rindskopf-Parker: Apparently not. This question is one that's also being debated with regard to the military tribunal order. A declaration of war is, of course, the clearest way in which we are in a state of war. It removes all doubt with regard to various types of legal provisions, and it provides a very useful beginning and end to a period where extraordinary measures may be necessary and in order. That said, a state of war can also be established by facts and certainly the type of congressional resolution we're dealing with here that was passed in September. It's similar to saying you may have a right based on statute or common law. A statute is a much clearer and crisper expression of what the law is, and yet we also know that we have judge-made law as well, where principles evolve over time, drawn from facts and the decisions they produce. That's of course the genius of the common law. In this situation, from a common law perspective, the totality leads us to the conclusion we're in a state of war. Once that's been established, what follows next with regards to questions of treason, military tribunals, etc., operate in the same way as if there were an explicity congressional determination we're at war. Were you to look backwards, you'd find there are fewer declared wars in those terms than you might think.
noffolk, va : what makes him any different than the Rosenbergs?
Elizabeth Rindskopf-Parker: Espionage is not dealt with in the way treason is in the constitution. The facts required are different. Treason is linked to war or a state of war. Espionage is not.
Brooklyn, New York : Could J.W. theoretically walk away from all these charges without any form of punishment?
Elizabeth Rindskopf-Parker: What are "these charges"? Let's turn the question around to figure out how likely it is he'll be prosecuted for something. I think the answer well may be less a legal than a political response. He may not be guilty of anything. We don't know the full range of the facts. He may also even now be serving a very important and helpful purpose as we prosecute the war. Those two issues will have to be balanced, and an additional factor that may come into play is even if it seems unlikely that there is a criminal charge, assuming that we have the elements of a crime, the likelihood is that a prosecution would go forward. I think that there will be a desire to make sure that the judgement here is fairly arrived at, and our system puts heavy emphasis on a trial process. If the facts show Walker did violate criminal statutes, the likelihood is he will be charged, but I think it's also important that the facts have to be weighed very carefully to make sure they support that type of prosecution.
Comment from Elizabeth Rindskopf-Parker: The conviction rate, even in military tribunals, is very much the same as in our own criminal courts (around 85%). Depending on your perspective, that's high or low, but I'd say that it reflects the tremendous amount of care put into the cases by the prosecutors. We want to be appropriately appreciative of the fact that these decisions to prosecute or not are very carefully weighed and considered.
Comment from USATODAY.com Host: Thanks very much to Elizabeth Rindskopf-Parker and to everyone who participated.