As U.S. bombs pummeled North Vietnam in the summer of 1972, Oscar-winning actress Jane Fonda traveled to Hanoi to decry the American military campaign, her words of encouragement for Ho Chi Minh captured on news reels and seen back home by millions of outraged Americans.
Fonda was branded a traitor, her fiery speeches characterized as a classic example of offering "aid and comfort" to the enemy at a time of war. Yet Richard M. Nixon's law-and-order Justice Department never filed treason charges against the actress, whose war protests earned her the jeering nickname "Hanoi Jane."
Despite her Hollywood status, Fonda wasn't necessarily receiving star treatment. Treason, the only crime that is explicitly defined in the Constitution, is rarely invoked and difficult to prove, legal experts say. In a treason case, actions matter - not words - and even then, the hurdles are considerable.
That very challenge confronts top U.S. officials now as they decide what to do with John Walker Lindh, the 20-year-old California man captured fighting alongside hard core Taliban troops in Afghanistan. Prosecutors are weighing whether to file treason charges against Walker, who uses his mother's last name, or whether another crime would be a better fit. While they deliberate, he is being held on an American ship.
`It looks like a match'
Political figures from Democratic Sen. Hillary Rodham Clinton to Senate Minority Leader Trent Lott say treason would be the right choice. Even Sen. Barbara Boxer, a Democrat whose constituents include Walker's family and former neighbors in liberal, affluent Marin County, Calif., says that he should be charged.
"If you read the definition of treason," Boxer says, "it looks like a match to me."
Government prosecutors, who would carry the burden of proof, are more restrained. Justice Department officials say they are considering a range of possible charges for Walker, who is in military custody. President Bush could announce a decision soon after his return to Washington this week from a holiday vacation at his Texas ranch.
For the government, almost any crime other than treason would be easier to take to court.
"When you look at the treason definition, you usually say, `Yeesh,'" says Mary M. Cheh, who teaches constitutional law and criminal practice at George Washington University Law School.
Robert F. Turner, associate director of the Center for National Security Law at the University of Virginia, says that since World War II, the government has been reluctant to pursue treason charges, in part because of political baggage that attaches to the charge.
"You may have a right to try someone, and decide you don't really want to do it," Turner says. "Treason is a fairly serious thing. As a policy matter, it strikes me that treason ought to be reserved for generals, not foot soldiers."
Few cases, fewer convictions
Fewer than 40 treason cases have been brought in the nation's history, with even fewer convictions. Benedict Arnold, the Revolutionary War turncoat whose name became synonymous with treason, fled to England before he could be charged under the laws of the time. Not even atomic spies Julius and Ethel Rosenberg were prosecuted for treason. Instead, they were executed after their convictions on espionage charges.
The most recent treason case was brought 50 years ago against a California-born man convicted of treason for assaulting American soldiers in Japanese prisoner of war camps during World War II.
Article III, Section 3, of the Constitution provides that treason shall consist only of levying war against the United States or in giving aid and comfort to its enemies. It also spells out what is needed for a conviction - "the testimony of two witnesses to the same overt act, or on confession in open court."
From the republic's inception, U.S. leaders purposely made treason a difficult charge to sustain. As James Madison recounted later, Benjamin Franklin told his fellow constitutional framers at the Federal Convention of 1787 that treason too often had been used as a tool to disable political opposition.
Franklin pressed fellow delegates to insert the requirement of two witnesses. He cautioned that "prosecutions for treason were generally virulent; and perjury too easily made use of against innocence," Madison said.
Even then, the Founding Fathers struggled to strike the right balance. Franklin's fellow Pennsylvanian, James Wilson, said that strict standard might not address real-world situations.
"Treason may be sometimes practiced in such a manner, as to render proof extremely difficult - as in a traitorous correspondence with an enemy,'" Wilson said, according to Madison's account.