[a] grand jury in Orange County filed a charge of treason against Adam Yahiye Gadahn [on October 11]. That marks him as the first person charged with treason against the U.S. since 1952. If captured and found guilty, Gadahn could face the death sentence.
The indictment accuses Gadahn of acting as a propagandist for al-Qaeda in several of that group's videos. He allegedly announced that he had joined al-Qaeda and claimed, "Fighting and defeating America is our first priority. . . . The streets of America shall run red with blood." Gadahn also supposedly called on Americans to convert to Islam and urged U.S. soldiers to switch sides in the Iraq and Afghan wars. On the basis of those and other allegations, the indictment concludes that Gadhan "knowingly adhered to an enemy of the United States, namely, al-Qaida, and gave al-Qaida aid and comfort . . . with intent to betray the United States."
Bell concludes: "If prosecutors can catch Gadahn, they have a fair chance of convicting him of treason." The main doubt in Bell's mind is whether or not Gadahn, who left the U.S. in 1998, had previously renounced his citizenship, which -- as Bell observes -- "it is not quite as easy as, say, simply burning a flag."
Some months later (August 18, 2005) I had more to say about Bell's views, as well as those of Eugene Volokh. Volokh yesterday repeated same points upon which I commented on August 18, 2005. Volokh's option 2 regarding the treatment of speech runs thusly:
Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there's some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of "treason."
I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.
As I wrote at the time,
I prefer Volokh's option 2. . . .
[P]resumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue -- as surely it would be asked to do.
I must add this: Speech that intentionally aids the enemy cannot also be speech that is intended to protect Americans' interests. You are either with us or against us.