TREASON TRIALS are in the air, as U.S. authorities seek a solution to the case of John Walker Lindh, the Taliban fighter from Fairfax, California. Predictably, misinformation is rife, with amateur experts weighing in on a topic most Americans have enjoyed the luxury of ignoring for the past 50 years.

But Article III, section 3 of the U.S. Constitution is both inclusive and specific in its definition: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Two witnesses or a confession in open court are required for conviction. Assisting the Taliban gun in hand, with many witnesses, should be enough to qualify John Walker Lindh as a traitor.

While the nation awaits a decision in the "Caliban" case, three World War II treason trials have returned to public attention. Max Haupt, resident of Chicago, was the father of Nazi saboteur Herbert Haupt. The son was convicted by a military court in 1942 and executed. The elder Haupt was found guilty of harboring his offspring, knowing he intended to commit sabotage, but the parent was spared execution.

The case of Tomoya Kawakita was more distasteful. American born, Kawakita went to Japan in 1939 to visit relatives and stayed, though without renouncing his U.S. citizenship. Once he returned to the United States after the war, he was identified as a brutal tormenter of American prisoners and found guilty of treason in 1952. His death sentence was commuted to life imprisonment.

The third case was that of Iva Toguri d'Aquino, widely though misleadingly known as "Tokyo Rose." Her 1949 trial for her role in wartime broadcasts on Japanese radio is a study in irresponsible journalism more than in the application of laws against treason. D'Aquino was the victim of an outrageous injustice.

Iva Toguri was an American who went to Japan in the summer of 1941 to visit a sick relative. She was a graduate of the University of California and spoke no Japanese. Trapped on the wrong side of the Pacific after Pearl Harbor, she was pressured by the imperial authorities to take Japanese citizenship but firmly rejected that option. She was refused evacuation from Japan. Though the U.S. government would not confirm her citizenship, the Japanese considered her an enemy alien.

Because of her loyalty to the United States, it was difficult for Toguri to get work in wartime Japan, but eventually she was hired as an English typist at Radio Tokyo.

There she encountered a group of Allied prisoners of war, who had been ordered to broadcast in English under threat of death. They included an American, Captain Wallace Ince, a Filipino, Lieutenant Norman Reyes, and an Australian, Major Charles Cousens. Cousens refused to work on the radio until ordered to by a fellow prisoner who was a superior officer. The group was assigned to "Zero Hour," a program limited to entertainment. Ince, Reyes, and Cousens subverted the broadcasts by including satirical references that the Japanese would not understand but Allied combatants would recognize.

Iva Toguri went to work on "Zero Hour" but declined to serve as an announcer until persuaded by Cousens. Once she started broadcasting, she identified herself on the air as "Orphan Ann." She would always insist she never made anti-Allied remarks. Nevertheless, she was labeled with the moniker "Tokyo Rose," a generic nickname applied by Allied servicemen in the Pacific to any number of women who broadcast music and light commentary on Japanese radio, some of whom also read propaganda.

Not one of the scripts for "Zero Hour" was written by Toguri--or d'Aquino, as she became after her marriage to the Japanese-Portuguese Felipe d'Aquino--and none of the prisoners of war who worked with her was effectively prosecuted after the war. (Ince was never charged, and although Cousens was tried in Australia, the proceeding was quashed.) Yet d'Aquino got caught up in a nightmare.

The nonexistence of any single "Tokyo Rose" did not faze two writers for the Hearst press: Clark Lee, a newspaper reporter, and Harry Brundidge, a writer for Cosmopolitan. These two traveled to Japan after the surrender and learned that of dozens of American-born staffers in the Japanese radio services, d'Aquino was the only one who had refused to renounce her U.S. citizenship. In a bizarre irony, this affirmation of allegiance to the Stars and Stripes left her vulnerable to a charge of treason if it could be shown she had knowingly broadcast anti-American statements. Lee named d'Aquino "the one and only Tokyo Rose" in a piece for the Los Angeles Examiner. Brundidge prevailed on the American military authorities in Japan to arrest her, but she was exonerated after a full U.S. Army investigation. The U.S. Department of Justice sustained her innocence.

After her release from military detention in 1946, d'Aquino had only one wish: to get home to Los Angeles and start a family. That was her undoing. Radio personality Walter Winchell caught wind of her attempts to return to the United States and pilloried her as "Tokyo Rose." Brundidge returned to the chase; he went back to Japan and extorted her signature on a fraudulent "confession." She was then indicted for treason by the Justice Department and flown to California to stand trial.

The American Civil Liberties Union and the Japanese American Citizens League refused to touch her case, which was taken up by an extraordinary civil liberties champion, an authentic liberal named Wayne Mortimer Collins. Collins had represented the plaintiffs in three challenges to the wartime relocation of Japanese Americans (Korematsu, Hirabayashi, and Endo). He represented d'Aquino pro bono, with assistance from a conservative Republican named Theodore Tamba and a labor lawyer of occasional Communist sympathies, George Olshausen.

Ince and Cousens appeared as witnesses for the defense, along with numerous Allied veterans who testified that "Orphan Ann" had played popular music and indulged in disc-jockey chatter with no propaganda content. The jury was deadlocked 10-2 in favor of conviction, but was ordered to reach a decision because of the high cost of the proceeding.

Finally, d'Aquino was cleared on seven of eight counts, and found guilty only on count six: that she had broadcast, in the fall of 1944, the approximate words "Orphans of the Pacific, you really are orphans now. How are you going to get home now that all your ships are sunk?" D'Aquino denied ever saying this; Cousens denied including it in any broadcast; and none of the scripts or recordings in the prosecution's possession included such phrases--besides, virtually every Allied soldier and sailor in the Pacific knew it wasn't true.

Two Japanese-American witnesses, however, testified that the sentences had been inserted by hand and that they had heard her speak them. D'Aquino was sentenced to ten years' imprisonment. She served six years and two months, and after her release was subjected to an attempted deportation to Japan, blocked by the dedicated Collins. But she was badgered for a $10,000 fine, which she could not pay until the early 1970s.

In 1977 Iva Toguri d'Aquino was pardoned fully and unconditionally by President Gerald Ford, who, in his last official act, restored her citizenship. She was the only American ever pardoned after being convicted of treason.

Her case offers some lessons: Treason proceedings are sensitive, and may go wrong. The media--or parts of it--can be stunningly irresponsible. On the other hand, American justice can right its mistakes. And, lest we forget, Iva Toguri d'Aquino did not take up arms against this country. The ambiguities of her situation are absent from that of John Walker Lindh.


Stephen Schwartz is completing a book entitled "The Two Faces of Islam."