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What Should Be Done with John Walker?

by By John Barnhill

Mr. Barnhill is an independent historian in Yukon, Oklahoma, and a writer for the History News Service.

The case of John Phillip Walker Lindh, the young American recently captured fighting for the Taliban, pushes to the fore the meaning of treason. While many of his fellow citizens are horrified, and rightly so, by his actions, we need to look at the Constitution for guidance. Past cases of U.S. citizens found on the wrong side of wars put Walker's situation in a clarifying light.
According to the Constitution, treason is defined as taking up arms against the government or giving aid and comfort to its enemies. The offense is extremely serious and carries the death penalty. The basic criteria for treason date from the trial of Aaron Burr in 1807 when Chief Justice John Marshall adhered to the letter of the Constitution, which requires an overt act in the presence of at least two witnesses to constitute treason. Under Marshall's standards, Walker has committed no treason.
Of course Walker is wrong in the eyes of most Americans, even if sincere. A Muslim for four years, he went to Yemen last year to study Arabic. He moved to Afghanistan when it was just one of many countries the United States regarded as sponsoring terrorism. Then came September 11.
In his prison interviews, Walker has stated that he approves of the events of that day, as he approves of Al Qaeda terror against the USS Cole. His statements understandably outrage American feelings of patriotism and grief, but they violate no law. Words make no one a traitor. Acts do. Walker has committed no treasonous act.
What he has most likely done is to violate the nation's neutrality laws. In doing so, he is by no means the first citizen of the United States who has done that. A quick look at the others will not make Walker's actions explicable. It will show that Walker can expect punishment more for taking an unpopular position than for violating a law.
In the 1850s, William Walker, no known relation, violated neutrality by filibustering -- that is, by invading foreign countries without government permission. He filibustered in Mexico, Nicaragua and Honduras. After he attempted to conquer the first two, juries in the United States acquitted him. During the third incursion, he was captured and executed by the Hondurans.
Sixty-five years later, during World War I, citizens of the United States flew combat missions for France in the Escadrille Americaine. Other Americans served in the French ambulance service. The composer Cole Porter supposedly lied about his war experiences, claiming to have been a French Legionnaire, because the cause -- despite official neutrality -- was popular.
The filibusters in the nineteenth century and the volunteers during World War I ignored official neutrality to support popular causes. Americans who joined the Abraham Lincoln Brigade to fight in Spain during the Spanish Civil War of the 1930s enlisted in a divisive cause. They trooped to Spain in 1937 after Spanish generals backed by German and Italian fascists staged a coup against the legitimate republican government. The Soviet Union supported the republicans, and volunteers from Europe and the United States, some of them communists, joined the fight. The neutral United States prohibited travel to Spain, hence these American citizens were violating the government's policy to support a cause they believed in, just as John Walker has done. Yet their neutrality violations remained unpunished.
John Philip Walker Lindh did not commit treason. He may have violated neutrality laws. He supported a cause in which he believes, a cause not outlawed until after his participation began. He may stand trial; he may receive punishment; he will be unpopular.
But in one major respect, he continued a time-honored tradition. Freedom has long included the liberty to ignore governmental policy and to suffer the consequences. Walker has done that.
This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.