Last week brought us the news of yet another American (this time a Mississippi couple) who allegedly prepared to travel abroad to join the ISIS effort. This is news we are hearing way too often. While there obviously are diplomatic and military components to any comprehensive strategy for dealing with ISIS, criminal prosecution is also among our tools. And it is a tool we are using.
In January I was fortunate to have a chance to speak to a law school audience in Tennessee about American treason law. Treason, as defined in Article III, section 3 of the Constitution, consists “only in Levying war against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” My speech at that time was focused on the question of whether Edward Snowden committed treason (he did not, in my view). My paper (an unpublished draft is available here) on that subject will be published soon. But in the course of preparing for the speech and writing my paper, I began thinking more about the application of treason law in the context of homegrown terrorism. Of the many Americans who have either fought against us during the post-September 11 war on terror, or have otherwise assisted our terrorist enemies (short of taking up arms against us), only one has ever been formally accused of treason. That was Adam Gadahn, who was indicted by the Bush Justice Department in 2006, but was never tried nor even captured – he was actually killed earlier this year during a drone strike in Pakistan (and thus his treason indictment is moot). Why not more? Are we too reluctant to use treason today to punish American citizens who are engaged in aiding terror groups? Treason is, and ought to be, hard to prove. But where the evidence is sufficient, it is possible that today’s homegrown terrorists and terror-group joiner/aiders fall into the small universe of citizens for whom treason is an appropriate prosecutorial response.
This will be my next project, particularly in light of the many news accounts of Americans arrested for trying to join ISIS. As I work through the project, I will occasionally post on some of my thoughts. But among my questions are the following: is ISIS an “enemy” as that term is used in the Treason Clause? If so (and I am inclined to think so), how substantial does one’s assistance or support need to be to qualify as “aid and comfort” to the enemy? And finally, are existing terrorism laws – including the statutes punishing material support for terrorism – sufficient, or could there be a good reason to use treason law, not so much as a substitute for material support but at least as a supplement?
I’m looking forward to digging in further.