Enough Evidence?

This is a partial transcript of "The Big Story With John Gibson," July 8, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: He's a suspect in a terror case, accused of attending a terror training camp. Prosecutors say a key piece of evidence is a Muslim prayer card (search) found in his wallet. But does that really prove their case?

Let's ask FOX News senior judicial analyst Judge Andrew Napolitano.

These are the two people out in Modesto, California, a father and a son. The son was accused of going to Afghanistan, being in a terror training camp, come back. They find in his wallet this little prayer. And I don't remember it exactly. But it's along the lines of, you know, may I be able to cut the infidels' throats.

So, what does that really mean as evidence against this guy?

ANDREW NAPOLITANO, SENIOR JUDICIAL ANALYST: Well, it actually says, "May we be at their throats." I suppose it means anything that the user of that prayer wants it to mean.

It's interesting, John. We actually called the prosecutor's office, the U.S. attorney in that part of California, to ask them if they were familiar with any federal case in modern times in which a person's prayer had been used as evidence against them. And they said no. And our own research has not turned up any. So, this is very, very interesting.

He is charged not with providing material assistance to terrorists. He is charged with lying to the FBI about whether or not he ever attended a terrorist camp, four counts on lying, four different lies during his interviews with different FBI agents.

So, the government wants to show to a jury the prayer found in his wallet to show that only someone who could say this prayer and mean it, whatever it means, would have the mind-set to attend the terrorist camp. Therefore, he lied. Therefore, he is guilty.

GIBSON: Well, look, we all get these things. People hand us prayer cards in the street. And you could stick one in your wallet without even remembering it and so forth. But he's not making that claim is he? He did get this at the terror training camp.

(CROSSTALK)

NAPOLITANO: Actually, since he's been indicted for what he said to the FBI and now has a lawyer, he's not making any claims or doing any speaking now.

And I don't know how he'll confront this, except I predict that his lawyers will make a First Amendment (search) argument, that, because the First Amendment protects prayer and expressions of religious fidelity, it can't be used against him. It will be very interesting as to which way the judge goes. This is not an issue that's been addressed before by an appellate court.

GIBSON: Does the First Amendment protect prayer that prays for the strength to kill?

NAPOLITANO: Again, an issue that's not been challenged.

I can remember, in the pre-Vatican II era, some Catholic prayers that talked about the blessed Virgin Mary crushing the serpent with her heel. Of course, the serpent was the devil. It wasn't a human being. And he was in the form of a snake.

And I can remember seeing Michael the Archangel depicted with a sword to slay the evil spirits, but, again, not human beings. It would be a very, very interesting case. If the prayer gets in, that is, if the judge lets jury hear the prayer, that would be an incentive for the defendant to get on the stand to attempt to explain it away. And that's really what the government wants to do. They want to try and get him on the witness stand to get him to repeat the lies he told the FBI.

GIBSON: Kindly come up here and explain all that.

Judge, thank you very much. Appreciate it.

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