The "symbolic value" of treason

This week, the administration announced a treason indictment against Adam Gadahn, who has appeared in Al Qaeda videos attacking the United States. Some legal experts are beginning to ask, "why?"

Glenn Greenwald was, to my knowledge, the first prominent legal voice to question the Bush administration's motives for charging a man with treason for supporting Al Qaeda.

On Wednesday, Greenwald wrote:

Pursuing the first treason prosecution against an American citizen in more than half a century is a very serious step with potentially significant consequences on numerous fronts. Consequently, it ought to be justified by some compelling reasons. There don't seem to be any compelling reasons here, but there do seem to be -- as always -- some clear signs of exploitation and mischief. This administration demonstrates, yet again, that there is no American tradition or custom that they are unwilling to ignore and violate if doing so provides even the smallest political advantage or otherwise enhances their power.

The line of reasoning which led Greenwald to this conclusion is the very nature of treason as a criminal accusation. In the entire history of this country, there have been fewer that 40 prosecutions of people suspected of treason. The Gadahn treason charge is the first such indictment in 50 years. There are numerous other criminal charges that would be more applicable Gadahn's case. And, Greenwald points out, George W. Bush has spent the last several years detaining without charges people he suspects of hostile intentions against the United States. Why charge a man who appears in videos with treason, of all things?

The Associated Press asked the question of prominent legal scholars of different political persuasions.

"There's a real effort in the (Bush) administration to keep fear alive in the country," said Jonathan Turley, a George Washington University Law School professor.

"The timing of this case and the use of this charge seems to be a bit too coincidental with the election cycle," Turley said.

Gadahn, a native of southern California, has appeared in several videotapes for Al-Qaeda since 2004, praising the September 11 attacks. In October that year, he appeared on a 75-minute video threatening new terror assaults.

In the latest tape, broadcast last month on the fifth anniversary of the September 11 attacks, Gadahn praised the men who carried out the attacks while calling on US soldiers to abandon the US army "and join the winning side."

Turley said prosecutors could have charged Gadahn with providing material support to terrorists.

The treason charge, he said, "is for public consumption."

Bruce Fein, a legal expert with unimpeachable conservative credentials, is similarly skeptical.

"Are we at a point now when we are treating non state actors as the equivalent of nation state for the purposes of our customary constitutional and international law?" Fein said

"It seems dubious," he said. "No one's sovereignty is threatened."

But David Rivkin, an attorney who worked in the Reagan and George Bush senior administrations, argued that nothing in the US Constitution says that a traitor must work for an enemy state.

The charge against Gadahn has "symbolic value," he said.

Perhaps without intending to, Mr. Rivkin gets right to the heart of the matter, don't you think?