Transcript: Get Out of Jail Card for John Walker?

This is a partial transcript from On the Record with Greta Van Susteren, February 11, 2002. Click here to order last night's entire transcript.

GRETA VAN SUSTEREN, HOST: Tonight, the government's case against John Walker. The American Taliban goes before a judge Wednesday to enter his plea. The heart of the prosecution's case, his battlefield confession, but will the jury ever hear it? Joining us from St. Louis, attorney Charles Polk, legal adviser to John Ashcroft before Ashcroft became the United States attorney general. Here in the studio is criminal defense attorney, Roy Black.

Roy, first to you. Not videotaped, not recorded, the statement of John Walker. What do you make?

ROY BLACK, CRIMINAL DEFENSE ATTORNEY: Greta, those of us who have the FBI know they have a culture of not tape-recording, not videotaping statements of suspects. That's because the FBI, who loves to tape everybody else, do not like to have themselves on tape. So while they may have regulations mentioning these kinds of things, they almost always never tape.

However, the interesting part here is, you know, the FBI goes in groups. They almost always have two agents. In this case, they only have one, which I think is a fairly significant point.

VAN SUSTEREN: Charles, I mean, if weren't the eastern district of Virginia, which has sort of a notorious reputation, I would be very worried if I were the prosecutor, that this statement may be thrown out of the courtroom.

CHARLES POLK, FMR. ASHCROFT LEGAL ADVISER: I don't think so. You know, Roy is an outstanding attorney, no doubt about it. But look, you and I know this dog is not going to hunt. The man wasn't found in Montego Bay. He was found in Kabul. You go to Montego Bay for sun and fun. You go to Kabul to fight as a terrorist. He was found in Kabul and in Yemen.

VAN SUSTEREN: Charles, you're not answering the question. The question wasn't what other evidence does the prosecution have against him. The question is, whether a statement taken by a single FBI agent, not two, that was neither recorded nor videotaped, not required by law, but nonetheless, very helpful...

POLK: No, no. There's no prohibition by the FBI against having a statement by one person. Look, I don't know why they didn't have two folds there. I don't know why they didn't tape it. But I really think it's irrelevant. Are you going to trust a John Walker, a man that's found in Kabul, over an FBI agent? I don't think so.

I've been overseas before and I tell you what. When I want over to Korea as a reservist JAG officer, I went there and I forgot my sleeping bag, because I was worried about what I was getting involved in.

I don't know what happened with this FBI agent, but I trust him a lot more than I do John Walker, or John Walker Lindh, or whatever he calls himself.

BLACK: What Charles is saying makes the point perfectly. You know why the FBI doesn't tape-record it? Why they don't have videotape? Because they know when they get to court, it's the word of a special agent of the FBI, who America loves, versus John Walker, defendant, Taliban, al Qaeda, and what have you.

His word against the FBI agent's is worthless. That's why the FBI can get away with this. So they're only going to have one agent, no videotape, no corroboration. But they figure when they get to court, everybody will believe the FBI

POLK: But, Roy, where was he found? Was he found in Montego Bay, or Kabul or Kandahar? Where was he found?

VAN SUSTEREN: That's not the issue.

POLK: Yes, it is! What was he there for? You don't go there for sun and fun. You go there to fight and to train as a terrorist.

VAN SUSTEREN: Charles, that's the issue that goes to other evidence that the prosecution may have against him. But the question whether or not statements are introduced against someone that the prosecution claims that the statements were even made, is that that's a very separate issue from whether or not the person is guilty, or what other evidence that they may have.

POLK: No. That goes right to the heart of it, Greta. That's not true at all.

VAN SUSTEREN: Roy, your view on this.

BLACK: You know, Greta, the most interesting thing that happened last week is the defense, as part of their bail motion, introduced a proffer of what Walker's testimony would be about his interrogation. And, if even a small percentage of that is true, I think the government has a real problem.

VAN SUSTEREN: I don't know if the government has a problem. Let me put an e-mail up to his mother, which reads: "I really don't know what your big attachement (sic) to America is all about. What has America ever done for anybody?"

Now, Roy, that's a problem he has.

BLACK: Sure, it is. But you know what? You have the First Amendment in this country. You don't have to love America. You can say whatever you want. Now, this is going to hurt him in the case, but the mere fact of making a statement like that is not sufficient to convict somebody of a serious crime.

VAN SUSTEREN: You know, Roy, you and I have tried a lot of cases. That's not one statement, if I represent John Walker, I'd want the jury to hear.

BLACK: Oh, no. You'll be cringing when you hear that.

POLK: When he went on CNN, why didn't he talk about the conditions he was under, or the mistreatment or this or that?

BLACK: Charles, you can see it. I mean, he's lying on a stretcher. He's injured. He's moaning. He's virtually crying. They don't give him any medical treatment. My God, the CNN tape corroborates his allegations.

POLK: Roy, there are a lot of folks in the New York City morgue. My heart really bleeds for Mr. Walker.

VAN SUSTEREN: And that's all the time we have. Charles Polk, Roy Black, thanks for joining us.

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