Walker: The Road Ahead

There are so many legal and political problems standing between Mr. Walker and the military tribunals that I don't think there is either the desire or the legal basis to try him in one, and I don't think he will be. It's extraordinarily unlikely that the Justice Department would attempt to strip him of his citizenship, a process that could take years, and then attempt to try him--a former U.S. citizen--before a military tribunal.

Some reports have alleged that Walker said that he was a member of Al Qaeda, and not just the Taliban. If that is true, would it affect his case?

Theoretically then he could be tried under the terms of the executive order [in a military tribunal] after he was stripped of his American citizenship. But it would be a highly dubious proposition.

Is mere membership in Al Qaeda enough to prove that he had a conspiracy to kill Americans?

Mere membership in Al Qaeda is sufficient to place you under the jurisdiction of military tribunals if you're not an American citizen. But under American law, even known membership in Al Qaeda is not of itself a criminal act. We've named Al Qaeda in lots of lawsuits, but that doesn't make it a criminal act. In the United States, since the abolition of the anti-Communist laws of the 1940s and '50s, mere membership in an organization is not a crime under American law.

What other charges besides treason could Walker face?