On October 11, 2006, the Department of Justice indicted Adam Gadahn on charges of treason and giving material support to a designated foreign terrorist organization. The indictment alleged that Gadahn, an American citizen, “knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort . . . with intent to betray the United States.” Gadahn allegedly betrayed the United States by appearing in five al Qaeda videos in which he ranted in English against the United States, praised the September 11 attacks, and touted al Qaeda’s ability to attack again. Because Gadahn’s alleged crimes consist solely of participating in propaganda videos, his case strongly resembles the last wave of treason prosecutions of American civilians, many of which targeted citizens who served as propagandists for Germany and Japan during World War II. In those prosecutions, the government employed an “aid and comfort” theory of treason; today, that theory raises First Amendment problems. Instead, the government should prosecute Gadahn under the “levying war” prong of the Treason Clause on the basis of his participation in a campaign of psychological warfare against the United States.

Treason, as defined by the Constitution and by federal statute, means either “levying war” against the United States or “adhering to [the United States’] enemies, giving them aid and comfort,” with the intent to betray the United States.

The World War II propagandist cases mention “levying war” only in passing, and instead rest their decisions—all affirming guilty verdicts—on the “aid and comfort” prong. However, the courts have had great difficulty explaining exactly what “aid and comfort” a propagandist provides, by way of either benefit to the enemy or detriment to the United States. In earlier decisions applying the phrase “aid and comfort,” courts faced clearer cases in which the defendants provided concrete materiel to the enemy. For instance, in Haupt v. United States, the Supreme Court upheld the treason conviction of the father of one of the Quirin saboteurs who, with full knowledge and endorsement of his son’s mission of sabotage, supplied him with housing, food, transportation, and employment in the United States. In a Civil War-era case, the Supreme Court found that British residents of the United States had committed treason when they provided saltpeter to the Confederacy with the knowledge that it would be used for gunpowder.

In contrast to providing an enemy with materiel, what “aid and comfort” do mere words provide? The simplest answer would be thatthe appearance of an American citizen on an enemy radio program would demoralizeU.S. troops in the field, thereby giving aid to the United States’ enemies. But the courts have held that the criminality of a U.S. citizen’s production of enemy propaganda does not depend on the effects of that propaganda. As the First Circuit stated in Chandler v. United States, “it makes no difference how many persons in the United States heard or heeded Chandler’s broadcasts. It does not even matter whether the particular recordings . . . were actually broadcast.”

The indictment against Gadahn follows the World War II treason cases in appearing to assert that propaganda amounts to treason under the “aid and comfort” prong, as the charges allege that Gadahn provided “aid and comfort” to al Qaeda and make no mention of “levying war” against the United States. In the press conference announcing the indictment, Deputy Attorney General Paul McNulty admitted that he had no evidence that Gadahn had planned or participated in any terrorist attacks.

Yet in response to a follow-up question asking what threat Gadahn actually posed, McNulty emphasized the potential harmful effects of propaganda: “The significance of the propaganda part should not be underestimated. . . . [T]his is a very significant piece of the way an enemy does business, to demoralize the troops, to encourage the spread of fear.” McNulty’s response evidences the effects-based theory of “aid and comfort,” as it asserts that the standard for determining whether a defendant provided “aid and comfort” to America’s enemies depends on the propaganda’s effect on the United States.

Unfortunately, neither the prosecution’s public statements nor the indictment explains how such an effects-based theory could be squared with Chandler’s holding criminalizing the production of enemy propaganda regardless of whether anyone ever hears it.Gadahn’s videos were addressed to the “People of America,” and the government might argue that the videos’ distribution has benefited al Qaeda by spreading fear. But following the First Circuit’s decision in Chandler—the first and most widely cited major propagandist case—the prosecution may not be required to demonstrate any concrete effect.

The problem with the Gadahn indictment—a problem inherited from the World War II-era “aid and comfort” decisions—is that the courts are unclear as to what constitutes “aid and comfort” in the propaganda context. The lack of clarity about what constitutes “aid and comfort” leaves the government great leeway to bring treason prosecutions against political dissenters, whose statements might provide “aid” to the United States’ enemies in only an extremely attenuated manner. Under the World War II precedents, there is no logical limit preventing an “aid and comfort” treason charge against someone in the United States who speaks the same words as Gadahn. Without a clear definition of “aid and comfort” that encompasses those who work for an enemy to produce propaganda but excludes those who engage in political dissent by independently agreeing with, but not working with, the enemy, treason may be expanded without limit. Only First Amendment free speech claims would remain to protect political dissenters—claims soundly rejected by the courts in the World War II propaganda cases. Perhaps a free speech defense would be more successful now, but as Chief Justice Marshall warned in Ex parte Bollman, “[T]here is no crime which can more excite and agitate the passions of men than treason.”

Because the definition of “aid and comfort” is so nebulous and might be interpreted to criminalize domestic dissent, prosecutors should instead charge propagandists with “levying war” against the United States. Several of the World War II propagandist cases mention that the defendants participated in enemy programs of psychological or propaganda warfare. Adjudicating a treason charge on a psychological warfare theory would limit treason more clearly to those cases in which the defendant has acted in concert with the enemy in a program of warfare, and prevent the government from raising treason prosecutions against individuals who make independent statements in support of ideas endorsed by the enemy.

A “levying war” theory of treason would cover the World War II propagandists who were employed by enemy governments’ broadcasting or propaganda agencies. Those propagandists were U.S. citizens who, voluntarily and with the intention of aiding the enemy, worked for enemy governments waging war against the United States. The “levying war” theory would also include Gadahn, who has appeared with al Qaeda leaders in several videos. Gadahn appears to have acted in concert with and at the direction of al Qaeda leaders in the same way that World War II propagandists worked with enemy officials; the level of violence and the sufficiently war-like characteristics of the “war on terror,” including the invasions of Iraq and Afghanistan, render this conflict a “war” for purposes of the Treason Clause.

Conceiving of treason as “levying” psychological warfare would exclude Americans who make statements in support of America’s enemies but who do not coordinate with them. This approach would alleviate some of the free speech concerns that would arise from charging persons with treason solely for uttering words in opposition to the United States. The prosecutor would have to prove that the defendant performed the treasonable acts in association with or at the behest of a terrorist group or other enemy of the United States. That is essentially the same standard that courts apply under the statute criminalizing material support for terrorism, which requires the prosecution to prove that defendants provided themselves as personnel to act at the “direction or control” of a designated terrorist organization. The statute also limits prosecutions by specifying that “[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”

A defendant could still raise vagueness and overbreadth challenges to a prosecution for treason, even under the levying war framework. However, because the statutory language tracks the Constitution’s Treason Clause, courts would be unlikely to find the definition of treason vague or overbroad. As the Supreme Court ruled in Kawakita v. United States, a non-propaganda World War II treason case, “[N]o matter the reach of the legislative power in defining other crimes, the constitutional requirements for treason remain the same. The crime of treason can be taken out of the Constitution by the processes of amendment; but there is no other way to modify or alter it.”

Absent constitutional amendment, adopting the psychological warfare theory of treason is the best way to free courts from the untenable position of stating that the effect of propaganda is irrelevant to whether a defendant has committed treason, while failing to offer an alternative explanation of the “aid and comfort” that a propagandist’s words provide the enemy.

Kristen Eichensehr is a second-year student at Yale Law School.

Preferred Citation: Kristen Eichensehr, Treason’s Return, 116 Yale L.J. Pocket Part 229 (2007), http://yalelawjournal.org/forum/treasona8217s-return.