American Taliban soldier could turn supergrass

It was Tomoya Kawakita's misfortune that a former victim spotted him in the street. He remembered the young Japanese-American interpreter in the prison camp, who spoke perfect English and participated with the guards in the bullying of prisoners. Who beat some, pushed another into a cesspool, and forced the obviously ill into hard labour.

Kawakita was 18 when in 1939 he left his home in California to visit his grandfather in Japan. He got a job as an interpreter for a local nickel company and was eventually, during the war, co-opted by the army to help in the prisoner-of-war camp, where, according to the US Supreme Court, his involvement in the harassment of prisoners saw him "going beyond any conceivable duty of an interpreter".

After the war he returned to the US where he was spotted, arrested, and put on trial. In 1952 Kawakita was sentenced to death for treason, the last person in the US to have been convicted of the offence. A year later President Eisenhower commuted the sentence to life. Now, the question is, would President Bush do the same.

Trials for treason are rare, with barely 30 cases in 225 years, and it is the only offence specifically refered to in the US Constitution. Uniquely, what is more, it is the only offence in the penal code for which a conviction requires the testimony of two witnesses.

Article III defines it thus: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

The unusual burden of proof reflected the unease with which the Constitution's drafters regarded the whole subject. Only a few years before they had all participated in treasonous acts and were only too well aware of the way the Europeans used the prosecution of subjects for this most political of offences as a way of dealing with political opponents.

Now President Bush has to decide whether to charge with treason an idealistic but confused 20-year-old, John Walker Lindh, aka Abdul Hamid, Taliban fighter, perhaps even al-Qaeda fighter, and US citizen.

His citizenship means that Walker (generally known by his mother's name) can not be charged in the special military tribunals which may be used for other captured fighters; and his parents have retained a well-known San Francisco Irish-American defence lawyer, Jim Brosnahan, for his inevitable trial.

Brosnahan, who fought Kevin Barry Artt's extradition after the latter's escape from the Maze, has already been busy demanding access to his client and insisting that he be given his Miranda rights.

Not necessary, insists the President's spokesman, Ari Fleischer, who says Walker, currently detained on the USS Peleliu in the Arabian Sea, is getting his full rights as a "battlefield detainee" under the Geneva Convention, and they do not include the right of access to a lawyer until he passes into the custody of the law enforcement authorities.

"History has not looked kindly upon those who have forsaken their countries to go and fight against their countries," the Attorney General, John Ashcroft, told senators last week, admitting he is researching the capital charges that may be laid against the young man.

The right in this country would very much like to see him face the death penalty. For many Walker, named after John Lennon, represents all that is wrong with liberal America: a combination of his middle-class California upbringing at an "alternative" school, his mother's conversion to Buddhism, his parents' indulgence of his own conversion to Islam via the autobiography of Malcolm X.

Enough said.

Did I mention the broken home? But convicting him of a capital offence, specifically treason, may not be easy.

Even if two witnesses can be found - Brosnahan will scarcely allow his client to confess in court -- Walker may be able to argue that the US has never actually declared war, or that he had joined up with the Taliban before hostilities and believed himself to be fighting the Northern Alliance.

Robert Turner, a law professor at the University of Virginia, says a likelier charge would be to link Walker to the killing of a federal official. Walker was being interrogated by the CIA officer, Mike Spann, just minutes before Spann was killed during the Mazar-e-Sharif prison uprising in which Walker was shot in the leg.

"The government would have a case, but Walker's not a good candidate for treason," Turner says. "You use it for important players, not foot soldiers."

Implication in the prison uprising will be problematic. Walker told CNN that after being captured, a few Taliban soldiers hid grenades in their clothes as they were taken to prison. He called the uprising a "mistake of a handful of people" because the Taliban soldiers had agreed not to fight, and says he did not take part in it although he was trapped in the basement.

"This is against what we had agreed upon, and this is against Islam," he said. "It is a major sin to break a contract, especially in military situations." Killing people in a jihad is not a sin at all, he makes clear.

If the authorities want to bring him before a military tribunal they may also argue that Walker intentionally renounced his citizenship in joining the Taliban, but the heavy onus on the prosecution is to prove that was his intention.

Others suggest Walker may, in return for pleading guilty to a lesser charge, end up a key witness against his former comrades when they come up before a military tribunal. Now there would be a real irony - Brosnahan defending a supergrass.

psmyth@irish-times.ie