Dear Editor,

Many people are asking what will be the likely outcome for John Walker, the American citizen who was apprehended fighting with the al Qaeda fighters against the United States of America. Has Mr Walker committed treason against the United States of America?

Under ancient English law, it was high treason to kill the king, promote revolt in the kingdom or armed forces, or counterfeit the great seal. Petit treason, on the other hand, consisted of the killing of husband by wife, master or mistress by a servant, or prelate by a clergyman (1 Hale P C 377; 4 Bl Comm 203). The crime of treason was neither a felony nor a misdemeanour, but a crime in a separate class by itself. "The punishment of Petit Treason in a man is, to be drawn and hanged, and in a woman be drawn and burned... " (4 Bl Comm 204). The drawing consisted of laying the malefactor on the ground and tying him to a "horse which dragged him along the rough road to the gibbet." (2 Pollock and Maitland 500 (2d ed 1899)). When the special penalty of petit treason disappeared this offence was merged with murder (3 Stephen, History of the Criminal Law of England 35 (1883)).

High treason in the words of Blackstone, is the term applied when disloyalty so rears its crest as to attack even majesty itself. "...being equivalent to the cremen laesae majestatis of the Romans, as Glanvil denominates it also in our English law" (4 B1 Comm 75).

It has been said that no crime is greater than treason, which threatens the very existence of the nation, and is the one offence whose definition is found in the Constitution of the United States of America (USA) (Hanauer v Doan, 79 US 342,347). Because of this fact "Congress can neither extend nor restrict the crime; its power over the subject is limited to prescribing the punishment," (United States v Greathouse, 4 Sawy, 457, 26 Fed Cas 18, 15, 254 (1863)) and hence as a federal offence no other definition is to be considered.

Treason against the United States of America therefore shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Since treason was a common law offence (4 B1 Comm 74), this constitutional definition is to be read in the light of the common law which regarded a breach of allegiance as of the very essence of the crime. Therefore an American citizen owes allegiance to the United States wherever he may be and this is true whether his citizenship was acquired by birth or naturalization. Furthermore, a resident alien owes a temporary allegiance to the government of the United States, but a non resident alien does not, at least in the absence of usual circumstances, such as travelling under an American passport. Consequently, a defendant can only be convicted if he owned allegiance to the prosecuting government. A person who has lost or renounced his American citizenship cannot commit treason against the United States (Kawakita v United States, 343 US 717 (1952)). However, an English case held that if a British subject, trapped in Germany by the outbreak of war, broadcast for the enemy to save his wife and children from a concentration camp, he was not guilty (Rex v Steane, (1947) All ER 813 (CA 1947)).

Disloyal thoughts alone are not enough for treason. Some overt act of aid, such as affirmative encouragement of the enemy is required (Cramer v United States, 325 US (1945)).

The defendant must have had the intent to betray the government, but a showing that he was aware that his actions would assist an enemy of the government will suffice. (D'Aquino v United States 192 F 2d 338 (9th Cir 1951)).

Under federal law and the law of many states conviction for treason requires either the testimony of two witnesses to the overt act or the defendant's confession in open court (US Const Art 3, sec 3, cl 1; Cal Const art 1 sec 20).

From the above it is reasonable to conclude that John Walker is guilty of treason.