With the news of Adam Gadahn’s capture in Pakistan mostly confirmed, an interesting question has arisen, both on Twitter and in the blogosphere. Where should the Obama administration try Gadahn? The White House will apparently reverse Eric Holder’s decision to try Khalid Sheikh Mohammed and the other 9/11 conspirators in federal court, but can they also try Gadahn by military commission? And should they, if so?
It depends at least in part on what charges the US levies against Gadahn. Theoretically, they could charge him with terrorist activity abroad, charges that a military commission could adjudicate. However, the evidence that Gadahn himself committed or facilitated actual terrorist acts may not be terribly convincing, nor is that what made Gadahn notorious in the first place. He’s been more of a Lord Haw Haw, a propagandist reportedly not terribly well liked or trusted by his own side. CNN talked a bit about that today in its reporting, wondering if the Taliban secretly arranged to have the ISI take him off their hands.
Besides, the US already has an indictment against Gadahn for treason, from 2006. That indictment would require a federal trial to adjudicate, putting aside the enormously dangerous precedent of using military commissions to try American citizens. The path of least resistance in this case would appear to also be the appropriate path — and it won’t take much effort to prove treason in this case. Gadahn’s latest missive in urging Muslim soldiers in America to attack troops was released just as news of his capture hit the wires, and his years-long track record of giving aid, comfort, and more to the American enemy al-Qaeda should make this a rather easy win for the Obama administration in federal court. Gadahn will be the first American tried for treason in almost 60 years, but all that means is that the winning percentage will improve.
Let Gadahn face his existing indictment, after intelligence experts get done interrogating him. Treason carries the death penalty, and that should satisfy everyone.
Update: Rick Moran wonders if we’ll even get the chance to try him, given Pakistan’s refusal to extradite captured terrorists. This case would be different, I’d guess, since Gadahn is an American citizen.