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Treason case against Walker no 'cinch'

U.S. officials haven't said what legal action they might pursue against John Walker.

(CNN) -- Prosecuting an American captured with Taliban fighters last week for treason could pose legal and political challenges for the government, according to some legal experts.

John Walker, 20, was among 80 fighters who surrendered last week after an uprising of Taliban prisoners of war outside Mazar-e Sharif. So far, the Bush administration has not indicated what legal action it may take against him.

Jonathan Turley, a constitutional law expert at George Washington University, said the facts appear to satisfy the definition of treason, which he noted also includes giving aid or comfort to enemies of the United States.

But an absence of an official declaration of war by the United States could complicate any prosecution, Turley said on CNN. Further, Walker said he joined the Taliban before the United States entered the war, Turley said.

"There's no question that we're at war factually, but the question of whether we're at war legally in terms of a treason charge is something that the courts haven't really dealt with," he said.

Article III, Section 3 of the Constitution also requires two witnesses to a treasonous act, or a confession in open court.

"This is not a lead-pipe cinch. This is not an easy case. The government does not want to lose a treason case if it brings one," he said.

Former independent counsel Kenneth Starr, now a lawyer with the Washington law firm Kirkland & Ellis, argued that a specific declaration of war would not be necessary to prove treason. He also suggested a witness list could include U.S. troops on the ground.

Still, he agreed that Walker's possible involvement with the Taliban before September 11 should be taken into account, and he cautioned against drawing quick conclusions about Walker's case.

"It's very serious when someone takes up arms or continues to carry arms against our country. But I think it's very important to withhold judgment," he said.

Starr noted the United States has a history of "decency and compassion."

"I think it's going to be an ultimate kind of judgment call, frankly, at the highest levels of government. I think it could go either way."

Nadine Strossen, president of the American Civil Liberties Union, noted on CNN's "Crossfire" there is a big difference between advocacy and action.

"I don't know enough about the facts of the case to know whether he satisfied the very strict constitutional definition of treason," she said, "but certainly it would have to go beyond mere expression of opinion."