Legal Commentary

Where and how to try Adam Gadahn:

By David Kopel

Taliban propagandist Adam Gadahn (a/k/a Adam Pearlman and ?Azzam the American?) has been captured in Pakistan. In 2006, he was indicted for treason in the federal district court for the Central District of California. Both during and after World War II, federal courts were successfully used for treason trials for American citizens who had served as enemy propagandists or committed other acts of treason. If you would like some analysis of the precedents, as specifically applied to the Gadahn case, see Kristen Eichensehr, Treason?s Return, 116 Yale Law Journal Pocket Part (no. 229, 2007) (arguing that Gadahn should be prosecuted for ?levying war? but not for ?giving aid and comfort to the enemy,? because of free speech concerns);  Douglas A. Kash, The United States v. Adam Gadahn: A Case for Treason, 37  Capital University Law Review 1 (2008) (good summary of the WWII cases). As Kash concludes: ?By bringing Adam Gadahn to a U.S. court of law to face criminal charges, while strictly preserving and affording him all rights reserved for all defendants, this nation can yet again show the world that despite the attacks on that fateful day, the pillars of justice upon which this Republic stands have not crumbled.?

Update: It now appears that the man captured was Taliban commander Abu Yahya, not Adam/Azzam Gadahn/Pearlman. So consider this post a head start for the discussion when Gadahn is brought to justice. Unless a drone takes care of the job first.

Full post as published by The Volokh Conspiracy on March 07, 2010 (boomark / email).