Reading Sunday the story of Lynne Stewart’s translator - who is going to prison for helping Sheik Omar Abdel-Rahman’s lawyer support terrorism - put us in mind of President Bush’s decision to make clear that America is in a state of war. The story of the translator, Mohamed Yousry, is told in an excellent dispatch by Julia Preston in the Times. The culprit doesn’t appear to have come to terms with his guilt. Ms. Preston reports that he is shocked and baffled by the verdict against him.
Instead, Yousry has concluded that his fate is the result of the change in New York after September 11, 2001, saying, Ms. Preston reports, that New York jurors “would rather believe the government” in terrorism cases and that he was “just part of the collateral damage.” Ms. Preston reports that he has been practicing for life in a prison cell by closing himself into small spaces to meditate and combing through his library for non-political books he supposes his keepers will allow him to read.
Let him parse Ex Parte Swartout and Bollman. This is the opinion in which Chief Justice Marshall issued the court’s great warning in respect of treason. He ruled that, under the Constitution, Aaron Burr’s two confederates couldn’t be convicted of treason because no conspiracy had been brought into action. But, Marshall warned, it was not the intention of the court to say that no individual could be guilty of treason who has not appeared in arms against his country.
On the contrary, Marshall wrote in a sentence that has echoed down the centuries: “If war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
It’s a tough standard. All those who perform any part, however minute, or however remote from the scene of action. Once they’re actually leagued in the general conspiracy, they are in trouble. Nor, as Marshall made clear, is it necessary for a matter to have ripened into treason, which can involve only levying war against America or adhering to its enemies, giving them aid and comfort. The legislature, Marshall reckoned, is competent to write general laws; and crimes not clearly within the constitutional definition of treason could receive such punishment as the legislature, in its wisdom, may provide.
Here is where Mohamed Yousry could most profitably spend his prison time studying for an end to his bafflement. He is quoted by the reporter of the Times as saying that it was up to the lawyers to decide what was right and wrong. It turns out, however, that under the law, it is up to each individual to be on guard against being seduced by America’s enemies.
This seems to have escaped one of Yousry’s teachers at NYU, Zachary Lockman, a professor in the Middle Eastern studies department who is quoted in the Times as defending Yousry. A dissertation Yousry was writing at the urging of Mr. Lockman caused Yousry trouble in the trial, according to the Times, making him seem to act independently. The Times quotes Mr. Lockman as calling Yousry’s terror conviction “ludicrous” in a letter Mr. Lockman wrote to the department faculty the day of the verdict. The professor reiterated to us last night that he feels the jury erred.
In all this, Mr. Bush strikes us as having a far deeper understanding of our responsibilities in a time of war. We surmise that is why he insists on using the word “war” when so many around him - and outside the administration altogether - are waffling around for new words with which to describe this conflict. “War” means something. It is serious. Its consequences extend into the everyday lives of ordinary people.
In Haupt v. United States, the first case in which the Supreme Court sustained a conviction of treason, the annotators of the American government’s edition of the Constitution remind us, a father was deemed guilty for having let his son, an enemy agent, stay in his home, and for helping him buy a car and find a job. In the case of Kawakita, the court ruled that even a dual national who was out of the country when he violated an oath of allegiance to America that was made as a minor and later repudiated cannot evade his obligations. War, we are in a time to remember, imposes responsibilities and choices on us all.
