ALEXANDRIA, Va. – The fate of American-born Taliban John Walker Lindh could be determined this week, when his lawyers make a critical attempt to disqualify his own statements about Al Qaeda and Usama bin Laden from the case.
While Walker's trial is not scheduled until Aug. 26, the indictment charging him with conspiring to kill Americans appears to rely mainly on his own statements while a captive in Afghanistan.
The outcome of hearings beginning Monday also could have implications for others who, like Walker, are captured in the war on terrorism and later transferred to the civilian court system. Foreigners held by the United States in Cuba could be affected if any of them are prosecuted by the Justice Department instead of the military.
U.S. District Judge T.S. Ellis III is being asked to determine whether Walker should have immediately been advised of his rights when questioned by U.S. forces last December, and whether any damaging statements were made under duress.
While Walker's team disputes government accounts of his statements, prosecutors contend he described enlisting in the Taliban; training at a camp the government says was run by Al Qaeda; meeting with bin Laden in Afghanistan in the summer of 2001; and learning from others at the camp that the Al Qaeda leader had sent operatives to carry out suicide missions against the United States and Israel.
Charges against Walker include conspiracy to murder U.S. citizens, contributing services to Al Qaeda and the Taliban and using firearms during crimes of violence. Three of the 10 counts carry maximum terms of life imprisonment for Walker, who was captured in early December and transferred to civilian custody in late January.
Walker's lawyers contend the failure to tell him in Afghanistan of his right to remain silent and have an attorney present violated his rights. They also say Walker was malnourished, deprived of sleep, bound and blindfolded, conditions that should invalidate anything he said.
Prosecutors respond that the Miranda rule spelling out a defendant's rights has no place on the battlefield. They argued Walker was treated as well as U.S. soldiers in the field.
Legal experts said they were unaware of any direct precedents to guide Ellis. Captured soldiers who are prisoners of war have rights under international treaties, and the military applies the usual civilian warnings to defendants prosecuted under its own military justice system. But POWs and military combatants usually are not switched to the civilian system.
Defense arguments for advising Walker of his rights even extend to a TV interview — just after his capture — in which special forces personnel participated in the questioning, Walker's lawyers said.
Ellis ruled Friday that the freelance reporter who conducted the interview, Robert Pelton, could not avoid a subpoena to testify. Ellis said journalists don't enjoy a First Amendment privilege to avoid testimony except in instances involving protection of confidential sources or harassment.
However, the judge said that before Pelton is called, he will re-evaluate whether the reporter's testimony is still needed after other witnesses appear.