Walker: The Road Ahead

There are a wide range of options, none of which are clear cut from a prosecutorial standpoint. The first response that people have is to say charge him with treason. Legally, treason is very difficult to prove. Treason is the only offense specifically described in the Constitution, and it requires the testimony of two eye witnesses, or a confession in open court. The framers of the constitution set a very high threshold for treason prosecutions because of the experience of American colonists being arrested and dragged off to England. In addition, the legal authority for charging someone with treason in an undeclared war is unsettled. But most fundamentally, you would have to prove beyond a reasonable doubt that John Walker Lindh knew that he was fighting against the United States of America and American soldiers, and not simply fighting against members of the Northern Alliance, with whom the Taliban had been at war for years.

So two witnesses saying "We saw him with a gun, he was fighting with the Taliban," wouldn't be enough to convict him of treason?

No. Walker had joined up with the Taliban well before Sept. 11, and it's not at all clear what information he possessed, or what he believed about the foe he was fighting, if he was fighting at all. We have heard he was captured with a Kalashnikov, but to date there hasn't been any gunshot residue tests performed to indicate whether it had been fired. If you're going to make the argument that he was shooting at American soldiers, you first of all have to prove there were American soldiers there, and then you have to prove that he knew he was shooting at them. And we just don't have those facts. At this point there is no proof that he injured any Americans, or attempted to injure any Americans, or even knew Americans were combatants. So treason becomes a very difficult charge.

Could his U.S. citizenship be revoked?

It's true that you can lose your citizenship by taking up arms in a foreign army, and certainly opening fire in Afghanistan against U.S. forces, if that's proven, is a fairly muscular form of non-allegiance. But this is not something they take lightly. The courts as a rule have been extremely reluctant to take away American citizenship from a native-born American. It happens very rarely. Based on the facts as they are now known, it is unlikely that a court would consider his conduct to be sufficiently definite as to allow him to be stripped of his citizenship.

Could he be tried in a military tribunal?