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Articles Below (Scroll Down) Information and Analysis About the Case of John Walker-Lindh Treason Relevant Facts What to Do With Fighter Taliban John Walker? Essential Elements Overt Acts "Sleeper" Charge Possible Reading Bush's Mind Reading Ashcroft's Mind The Charges The Indictment The Bail Hearing Reading Brosnahan's Mind The Discovery Motion The Conventional Wisdom Why the Government Was Wrong in Not Indicting Taliban John for Treason Taliban John is Indictable and Convictable for Treason The Desperate Defense The Noose Tightens Another Defense Stretch Journey's End The Good Guys Won Anyhow

INFORMATION AND ANALYSIS ABOUT THE CASE OF JOHN WALKER-LINDH When my co-author and I wrote "Aid and Comfort": Jane Fonda in North Vietnam (to order click here), about whether her 1972 trip to Hanoi and her activities there constituted treason, we had no idea that this arcane "grandmother of all crimes" — ignored since World War II — would ever again seize public attention as it has recently, because of the conduct of John Walker [Lindh]. As I watched the print and electronic media coverage of the Walker case, I was appalled by the ignorance displayed not only by the media, but by pundits and politicians — even lawyers — as they pontificated about the legal aspects of the case. Unfortunately, there has been a great deal of misinformation bandied about — not only on the subject of treason — but on other crimes of which Walker may be guilty as well. In an attempt to set the record straight, I used this website as the means of communicating my thoughts about the case. While Walker's fate was being resolved, I provided relevant information and analysis on this website about both the legal and political aspects of the case. Taliban John pleaded out, and is now doing twenty years.

 

KNOWN RELEVANT FACTS (As of December 18, 2001) Early in December, as the Taliban/Al Qaeda forces were being routed in Afghanistan by indigenous Afghans and US troops, Americans were shocked to learn that among the enemy was United States citizen John Walker. Pieced together from press reports, statements by Walker's parents, and from Walker himself, the following is what we know as of today about his odyssey from Marin County, California, to his current confinement today on the USS Peleliu (a Marine amphibious ship) in the Arabian Sea. I emphasize that what follows are only the facts as they pertain to Walker's legal exposure. Accordingly, I am ignoring his, and his parents' backgrounds (about which much has been written), the excuses being made for him based on his age and alleged inexperience, and the uninformed cries that he be put to death. All of the above is legally irrelevant to Walker's conduct in Afghanistan, and to the potential legal consequences of that conduct. Walker's epiphany apparently was inspired by his reading the autobiography of the radical Malcom X. When Al Qaeda terrorists in Aden bombed the USS Cole in October 2000 - killing 17 Americans, causing millions of dollars of damage, and making the United States look like a sitting-duck - Walker voluntarily opined that the attack was justified because our ship being in Yemen's waters constituted an "act of war" against Islam. Walker, by then a student of Islam and the Arabic language, journeyed to Pakistan to join a madrassa - an Islamic fundamentalist school - in a region known to be a bastion of Islamic extremists and to harbor supporters of Osama bin Laden. Walker adopted the Muslim name, Abdul Hamid (among others). A nom de guerre, as it turned out. Then Walker disappeared for some seven months. We now know where he was. According to Newsweek magazine, Walker apparently has admitted to American interrogators that he is a member of Al Qaeda, that he trained at its camps, that he learned how to use weapons and explosives, that he met with terrorist leaders (including bin Laden), and that among other "skills"he was taught how to infiltrate airports. Walker fought with the Taliban in Kashmir in the summer of 2001. Following the September 11th terrorist attacks and America's response, Walker was sent by the Taliban/Al Qaeda to fight in Konduz against the Northern Alliance, trekking some one hundred miles with his comrades. Upon reaching Konduz, Walker and many of his fellow terrorists were forced to surrender. Taken to the Qala Jangi prison, they immediately began the first of two uprisings. It was put down, and the prisoners were incarcerated overnight. The next morning, Walker was interrogated by CIA officer Johnny Micheal Spann. The prisoner gave up no information. This is Newsweek's report of Walker's account of what happened next: Shortly after the unsuccessful interrogation by Spann, ". . . someone either pulled a knife or threw a grenade at the guards or got their guns, and started shooting." A bloody Taliban/Al Qaeda-inspired uprising broke out in which prisoners and Northern Alliance troops - as well as Mike Spann - died. Walker was wounded. With a remainder of 85 other hard-core Taliban/Al Qaeda fighters, Walker retreated to the prison's basement where, despite entreaties and massive pressure by the anti-Taliban forces to surrender, he held out for nearly a week before he and the other terrorists were flushed out by freezing water. Newsweek quotes Walker, then in captivity, as admitting that his "heart became attached" to the Taliban, and that he "supported" the September 11th terrorist attacks on the World Trade Center and the Pentagon, where thousands of American civilians as well as people of other nationalities were murdered. CNN, citing Newsweek, quoted Walker as admitting that he was a "jihadi" - a fighter of holy wars. Following Walker's capture at the prison, the United States Central Command characterized Walker's custody status as an enemy prisoner of war. Walker - wherever and however he obtained his information - has since told American officials that he knows Al Qaeda's next terrorist attack will come at the close of Ramadan, and that it will be of a biological nature - "Phase II," he called it. "Phase III," according to Walker, will destroy the United States of America. A certain confluence of events strongly suggests that Walker may soon be delivered to US civilian custody. He was originally held by Special Forces. Then he was placed in the custody of the Marines at Camp Rhino, held as a "battlefield detainee." After that, he was transferred to a Marine vessel in the Arabian Sea. Attorney General John Ashcraft has now tasked Department of Justice lawyers to analyze the federal crimes with which Walker could be charged - particularly those which, like treason, carry a possible death sentence. There are press reports that agents of the Federal Bureau of Investigation are on their way to read Walker his rights. All this we know. What is its significance? The commentary below, and further commentary that I will provide, is designed to answer this question and the many more surely to come.

 

WHAT TO DO WITH TALIBAN FIGHTER JOHN WALKER?

(Published December 6, 2001) "Everyone loves him," said his mom. "He's a really good boy, a really sweet boy." Marilyn Walker was referring to her son, John Phillip Walker - aka Abdul Hamid - most recently seen on international television wounded, starved, and filthy from his several-day stay in the basement of a muddy makeshift prison in Northwest Afghanistan. Mr. Hamid, an American citizen fighting on the side of the Taliban (and almost certainly the Al Qaeda forces of Osama bin Laden) was flushed out of his hideout through the application of freezing water, which wrote the final chapter to the prisoner revolt at the Qalai Janghi fortress. During that revolt, not only were fighters of our Northern Alliance allies killed, so too was an American intelligence operative of the Central Intelligence Agency. Taken prisoner by the anti-Taliban forces, Walker-Hamid openly admitted sympathy for the terrorist bombing of the U.S.S. Cole, and the attacks on the World Trade Center and the Pentagon. Tuesday, when at his press conference Secretary of Defense Donald Rumsfeld was asked about what can be done with Taliban John, the secretary did not provide an answer. Although the answers are clear, they are limited. To begin with, it's easy to say what isn't going to be done with Walker-Hamid. He isn't going to put before any United States Military Tribunal, because the jurisdiction of those bodies, if ever they are convened, does not extend to American citizens. He will not be court-martialed, because he served in the wrong army. Nor will he be charged with treason, for two reasons. First, the "levying war" against the United States prong of the crime of treason is problematic, because in fighting for the Taliban against the Northern Alliance it is uncertain that Walker-Hamid was actually fighting against the United States. Second, while the "adhering to their enemies, giving them aid and comfort" prong may be easier to prove than "levying war," the fact is that all American administrations since World War II have had an aversion to indicting for the "mother of all crimes," and no one has been charged with treason since the end of World War II (note the Rosenberg case, which was brought under the Espionage Act), Indeed, if Jane Fonda was not charged with treason in 1972 after her successful propaganda efforts on behalf of the Communist North Vietnamese, Walker-Hamid certainly will not be indicted for treason. That leaves Walker-Hamid facing [at least] two possible punishments. One is under American criminal law. For example, an American citizen is subject to the judicial system of the United States for acts committed abroad if there is a connection - a "nexus " - to this country. Thus, for example, if an American citizen murders another American in our embassy in Prague (which is considered United States territory), the alleged killer can be tried in an American court. We even extradited to the United States bombers of the American embassies in Kenya and Tanzania, and they weren't even American citizens. Equally, Jane Fonda could have been indicted in an American court for her conduct in wartime North Vietnam, given her acts' effect on the United States. So let us recall the events surrounding Walker-Hamid's conduct in Afghanistan. He fought for the Taliban, was captured by the Northern Alliance, and arguably took part in the Qalai Janghi prison uprising where an American CIA agent was killed. Depending on the facts, under American criminal law Walker-Hamid might have been a principal in that killing, he might have been an aider and abettor, and/or a conspirator. If there are facts supporting any of these roles, Walker-Hamid is chargeable in a United States court. In addition, his American citizenship is at risk. Under at least three sections of the Nationality Act, Walker-Hamid could lose his American citizenship: voluntarily (a question for the trier of fact) declaring allegiance to a foreign state, merely serving in a post for which such a declaration is required (even without making a declaration), or serving in the armed forces of a foreign state if it is engaged in hostilities against the United States or by serving as an officer or noncommissioned officer in the armed forces of a foreign state. Loss of citizenship is serious business. But if Walker-Hamid were to be convicted of having a role in the murder of our CIA agent, he might have to worry about losing more than just his citizenship.

 

ESSENTIAL ELEMENTS

(Published December 12, 2001) At almost the same time that Taliban fighter John Walker was being interrogated in Afghanistan by CIA agents, I had just finished correcting the page proofs of my soon-to-be-published book dealing with whether Jane Fonda committed treason when she traveled to Hanoi in 1972. Accordingly, I was appalled when the Walker story broke and I heard many in the media, and even important public officials, revealing how little they knew about this "mother of all crimes." Indeed, only a few nights ago when Larry King asked Joe Biden about treason, all the Senator could say was that it was "levying war against the United States" (adequate), and then mutter something about "aiding the enemy" (woefully inadequate). With a national debate now beginning about what should be done with Walker, it is essential that Americans understand exactly what constitutes the modern crime of treason. There are only three crimes mentioned in the Constitution - piracy, counterfeiting, and treason - the latter being the only one defined: "Treason against the United States, shall consist only in levying war against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." (Article III, Section 3, paragraph 1). The meaning of the "levying war" prong of the crime has not been interpreted by the Supreme Court in modern times. For that reason, and because the prong's history suggests that a prosecution of Walker for levying war would be problematic, I shall comment only on the "aid and comfort" prong - which is easier to prove. In the Twentieth Century, only eight treason cases - all arising out of World War II - were decided by federal appellate courts. Five of them were "broadcast" cases - four for aiding the Germans, one for aiding the Japanese - decided by United States Courts of Appeal, and therefore they are much more relevant to Fonda than to Walker. The other three cases, decided by the Supreme Court, laid the ground rules for conviction of treason on the "aid and comfort" prong of the crime. The first Supreme Court case was Cramer v. United States. An American citizen was charged with aiding a Nazi saboteur who was tried and convicted by a Military Tribunal. Although Cramer was convicted by a trial court and his conviction upheld by a Court of Appeals, the Supreme Court reversed, 5-4, because the majority and the dissent disagreed about whether Cramer's conduct had actually provided "aid and comfort" to the Nazis. Next came Haupt v. United States, where the American citizen father of one of the saboteurs was charged with aiding his own son. Haupt, Sr., was convicted, his conviction upheld on appeal, and the Supreme Court affirmed. The last of the Supreme Court's trilogy of treason cases was Kawakita v. United States. The defendant, another American citizen, became a straw boss over American POWs in Japan, torturing and otherwise brutalizing them. His treason conviction on the "aid and comfort" prong was upheld on appeal, and affirmed by the Supreme Court. In these three cases, the Supreme Court interpreted the "adhering to their enemies, giving aid and comfort" language of Article III as requiring a treason prosecutor to prove four elements in order to get a conviction: (1) the defendant's intention to betray the United States, (2) manifested in an overt act, (3) testified to by two witnesses, (4) which gave aid and comfort to the enemy. (A declaration of war is unnecessary; mere hostilities are enough). These are all jury questions. This means that if there is reason to believe the accused's conduct may have satisfied these four proof requirements, he can be indicted, and if a jury agrees that his conduct did satisfy them, he can be convicted. What our public officials - and the public in general - ought to be asking themselves in the ongoing debate about John Walker is this: Could a grand jury believe that Walker, an American citizen - because of his training by Al Qaeda and his combat service with them (let alone his participation in the prison revolt, and his proximity to the murder of American CIA agent Spann) - (1) intended to betray the United States, (2) committed at least one overt act to that end, (3) to which two witnesses could testify, (4) and in so acting "adhered to the enemy, giving aid and comfort"? And if a grand jury did indict Walker, could a trial jury convict? To ask the questions is to answer them.

OVERT ACTS

(Published December 19, 2001) As the drums beat louder for Taliban John Walker to be charged with treason, it is more important than ever for the American public to understand clearly what elements must be alleged and then proved to indict and convict someone of that constitutional crime. The necessary element of "intent" can be proved by the actor's own statements, or inferred by the jury from his conduct. Also a question for the jury is whether the actor's conduct provided "aid and comfort" to the enemy. Two witnesses must testify to at least one overt act. But what is an "overt act" sufficient to satisfy the constitutional requirement? Fortunately, we have an unambiguous example of overt acts that did sustain a treason indictment and conviction, in the Supreme Court case of Haupt v. United States. Hans Max Haupt was the father of one of the Nazi saboteurs who landed by submarine on the United States coast. Hans tried to help his son obtain reemployment at a sensitive defense plant, gave his son a place to live, and purchased a car for his son. At trial, Hans argued that his conduct was insufficient to constitute treasonous overt acts because they were "commonplace, insignificant and colorless, and not sufficient even if properly proved to support a conviction." The Supreme Court, 8-1, disagreed. An example of overt acts that could have sustained an indictment and conviction were those committed by Jane Fonda in North Vietnam during July 1972, had the Nixon administration charged her. She made anti-American broadcasts, taped and played incessantly to American prisoners of war, attacking the United States, its president, and its military. She met with seven American POWs, and returned home to tell their families that they were in great shape. She lied about our POWs being tortured. She held press conferences in Hanoi, Paris, and American cities, attacking our government. She provided "photo ops" for the North Vietnamese Communists - not the least of which showed her sitting on a North Vietnamese anti-aircraft gun used to shoot down American planes, looking through the sight at an imaginary aircraft. She met with senior North Vietnamese civilian and military leaders. (For further details, see "Aid and Comfort": Jane Fonda in North Vietnam). Which brings us to the recent conduct of American citizen/Taliban fighter John Walker in Afghanistan. So far, we know from his own lips that he trained in two Al Qaeda terrorist camps, fought in Kashmir with Taliban/Al Qaeda forces, and marched some 100 miles with them into Northern Afghanistan, where he was captured. We also know that Walker was engaged in the Qala Jangi prison revolt where he was wounded, and that he was at least in close proximity to the killing of American CIA agent Mike Spann. If Haupt's overt acts - assisting his saboteur son to get a job, a place to live, and an automobile - were sufficient to sustain a treason indictment and conviction, and if Fonda's overt acts - broadcasts, photo ops, lies, meetings, press conferences - could have been sufficient to sustain a treason indictment and conviction, then what about Taliban John's overt acts that are described above: terrorist training, terrorist combat, terrorist travel, terrorist rebellion, and perhaps complicity in terrorist murder of an American? There is no doubt that John Walker's conduct is more than sufficient to sustain the "overt act" requirement for an indictment for the constitutional crime of treason. Thus, since there is adequate evidence from which an intent to betray could be inferred, and adequate evidence to show that the enemy benefited from Taliban John's conduct (and presumably two-witness proof of at least one overt act), there is no legal impediment to indicting John Walker for treason - nor to convicting him. However, in the days ahead, we shall see whether there is a political impediment to indicting Taliban John.

 

"SLEEPER" CHARGE POSSIBLE

(Published January 9, 2002) While there has been considerable speculative discussion of various charges against John Walker- now being held on the American vessel Bataan in the Arabian Sea - an indictable offense that has been virtually overlooked is the one that may, in the end, cause Taliban John the most trouble. Especially if the Bush Administration doesn't indict Walker for treason. Title 10, Section 904, of the United States Code (Uniform Code of Military Justice) is entitled "Aiding the Enemy." The section provides that: "Any person who (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) . . . knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct." Even though this statute has not been construed much by the courts, let alone by the Supreme Court of the United States, arguably it's applicable to Walker's conduct. We know that he trained with al-Qaeda in at least two terrorist camps, that he admitted knowing the camps were funded by bin Laden, that he fought with al-Qaeda, that he participated in two prison uprisings involving US forces, that he was in proximity to the murder of CIA agent Mike Spann, and that he claimed to have knowledge of a post-Ramadan biological attack on the United States. And this is just what we know; doubtless, American authorities by now know much more. Turncoat Marine Bobby Garwood was convicted, in the mid-1980s, of the Section 904 crime by a Marine Corps court martial for his reprehensible conduct with the Viet Cong in South Vietnam. (See United States v. Garwood, 16 MJ 863, NMCMR 1983). However, there are as yet unanswered questions about using Section 904 against John Walker. Garwood was an active duty Marine when he committed the acts for which he was later convicted. So, does Section 904 apply to Walker who, though an American citizen, was not at the time of his acts in any United States military service? The answer is probably "yes" for two reasons. First, another federal statute, 10 U.S.C. 802, provides that: "The following persons are subject to" the Uniform Code of Military Justice [which would include Section 904]: . . . (9) Prisoners of war in custody of the Armed Forces. . . ." While Central Command has been characterizing Walker as a "military detainee" (whatever that semantic description is supposed to mean), the fact is that the former al-Qaeda fighter - taken from the field in armed combat by allied forces, and doubtless American troops of one kind or another - is a prisoner of war. Accordingly, Section 802 would seem to apply. Second, Section 904 has been construed as not being limited only to persons subject to the Uniform Code of Military Justice. (See Duncan v. Usher, 23 MJ 29, CMA, 1986). Can it be argued that al-Qaeda was the "enemy"? Not only can it be argued, it is undeniable. Can it be argued that Walker aided or attempted to aid al-Qaeda with at least "other things"? If not, what was he doing with them: training, marching, fighting, rebelling, and perhaps even killing, or conspiring to kill, an American? Can it be argued that Walker knowingly harbored or protected or gave intelligence to al-Qaeda "either directly or indirectly"? As noted, at the very least, he marched, fought, and rebelled with them. Can it be argued that Walker had "intercourse" with al-Qaeda "either directly or indirectly"? Again, we need only look at Walker's conduct with them. If any of these questions could be answered affirmatively, federal prosecutors have sufficient evidence to get a Section 904 case against John Walker to a jury. Could Walker get the death penalty? Yes. The statute expressly provides for it. Could Walker be tried, not by a court martial, but instead by a military commission? Yes, the statute expressly provides for that forum, and President Bush's Executive Order expressly provides for the creation of military tribunals. However, it's important to understand that if the administration decides to go this route, it would not be violating the Bush Order because federal law - Section 904, pre-existing law - already allows an American citizen to be tried by a military tribunal for the crime of "aiding the enemy." Thus, while Walker could be tried for a Section 904 "aiding the enemy" violation, he could not be tried for any crime (i.e., terrorism) contemplated by the President's Executive Order - although, under Section 904, Walker could be tried by a military commission constituted under that Order. This assessment of the utility of a Section 904 charge against John Walker should not be allowed to obscure the other possible charges against him, including treason, complicity in the murder of Mike Spann, and providing material support to the enemy - all of which could, and may, be brought against Walker. But in the mix, if there's a sleeper crime to keep an eye out for, it's the charge of "aiding the enemy."

 

READING BUSH'S MIND

. . . wow, did I make a mistake calling that Walker kid misguided. Where were my political people on that one? This has become a real mess. Here we are - at Christmas no less - and thanks to Newsweek and CNN, every day that guy looks worse and worse. He got radicalized by Malcolm X. He approved of the attacks on the Cole, the World Trade Center and the Pentagon. He trained and fought with al-Qaeda, and maybe even met bin Laden. He stonewalled Mike Spann's interrogation, and may have been involved in his murder. He admitted his outfit and the camps were funded by bin Laden. He claims to know what happens next. Every day the media flogs this story. Outside of his parents - even they've been keeping their mouths shut lately - hardly anyone has any sympathy for Walker. Rove just told me that CNN is getting thousands of emails condemning this guy. David Horowitz says he should be shot. Even most criminal defense lawyers have nothing good to say about him. We've got him on a Marine ship in the Arabian Sea. Ashcroft sends some FBI guys out there to read him his rights. Rumsfeld thinks he's a traitor. So do lots of people on the Hill. Democrats, too. But the libs and the peaceniks and a lot of parents feel sorry for him. The lawyer the parents got him . . . Al Gonzales tells me he's a tough case. Brenihan or someone. They're waiting for me to make a decision. We sure have to charge him with something. Can't let him go free. Back to Afghanistan or Pakistan, or even California. People are angry. Me, too. Now, anyway. Got to climb back off that limb, Rove says, and he's right. I spoke too fast. We can put out the word that I didn't have the facts. And I didn't. Everyone knows that. More stuff is coming out every day. Everyone's talking about treason. That's pretty heavy. Even the Rosenbergs weren't hit with treason. Even Nixon didn't indict Jane Fonda. But Holzer says there's an easy indictment, and a jury could find Walker intended to betray America and gave aid and comfort to the enemy by an overt act. Two witnesses shouldn't be hard to find. Ashcroft admitted that if we can't get him for treason, we can sure get him for something. What did he say . . . something like providing material resources to terrorists? Maybe aiding and abetting or conspiracy to commit treason, murder or terrorism. He figures that Bresnihan will try to plead Walker out using leverage, like his age, that he cooperated with us, whatever. But Ashcroft says there's no leverage here, just smoke and mirrors. We've got Walker on something and everyone knows it. I don't want to make Walker a martyr, but how the hell can we make war on terrorism and let him walk? How can we uphold the rule of law and ignore what this guy did? He's an American citizen. All those World War II people - Axis Sally and Tokyo Rose, and the others - all they did was broadcast. This guy fought against us. He's a terrorist, he's al-Qaeda. Why not treason, and a lot of other stuff, too? Let the jury decide. That's what they're for, right? I'll tell Andy Card to have Ashcroft get me a laundry list. Maybe we'll throw the book at him. Let the chips fall where they may. After Christmas.

 

 

READING ASHCROFT'S MIND

(Published December 26, 2001) Well, the Boss has asked for options about how to deal with Walker. The good part is that he's made it clear that I'm to ignore political considerations. Apparently, Rove and the other political mechanics in the White House aren't going to have any input into this. Maybe Rumsfeld, because of all the other prisoners we have, but not anybody else. Only the President. And the other day, he said Walker faces a grim future. The bad part is that he may not like what I'm going to tell him, so we better be very sure we're on solid ground and there are no leaks before he makes up his mind. Or I'll have painted him into a corner. Not a good idea. Even before last week, the facts were pretty clear. Since then, we've learned that Walker was definitely Al Qaeda. And the president said so. No question Walker knew who he was with, and what he was doing. Newsweek just reported that he was tight enough with Al Qaeda to live in a secret camp frequented by Osama himself. Where one of the hijackers trained. Walker met with bin Laden at least once. He opted to train as a fighter rather than as a martyr. He admitted membership in Ansar, and that it was funded by bin Laden. Solid facts! Let's start with the rule-outs. He's an American citizen, so no military tribunal. If we want to go against his citizenship, that's way down the road after all the criminal proceedings. But it's worth thinking about. No court-martial, because he wasn't in our army. If he's just a prisoner of war, sooner or later he gets to go home. Good that Don agreed not to call Walker a POW. And he wasn't in uniform. So, he's not a POW. Maybe some Geneva Conventions problems here, too. No war crimes, either. No Nuremberg. Terrorism has to be within the United States. Bad facts. No help there. Forget what we charged the Rosenbergs with. There's no Espionage Act here. There's a statute prohibiting enlistment to serve against the United States, but that's only three years tops. Lying to a federal officer is a felony under 18 U.S.C. 1001, but that's only five, tops. Seditious conspiracy and advocating overthrow of the US government don't apply. No matter what he tells us that might help, he can't go free. No matter what those talking-heads lawyers say on TV, there's no Miranda rights problem. Not for an enemy detainee interrogated halfway around the world by American troops and CIA agents. I'd like to ask Gerry Spence if Axis Sally or Tokyo Rose were entitled to Miranda warnings. He'd probably say yes. So where does that leave us? Let's start with treason. I'm amazed at how wrong everyone outside the Justice Department is about treason. Especially those law professors. Where does the media get them? Virtually every one of them deserves an F. All you have to do is read eight cases, three in the Supreme Court and five in Courts of Appeal. Treason hard to prove? Ridiculous. Can we get an indictment on whether he intended to betray, an overt act, aid and comfort, with two-witness proof? Of course we can. Could a jury convict? Sure. No question about the acts. Look at everything he did. They can infer intent from the act. Aid and comfort is easy. After all, he fought with Al Qaeda, stonewalled Spann, was there when he was killed. We can also charge him with conspiracy to commit treason under 18 U.S.C. 371. All we need for that is an agreement to adhere to the enemy giving aid and comfort, and any kind of an overt act, even a legal one. No one's talking about 18 U.S.C. 2332. You murder an American outside the US, you can get up to life or even death. If you conspire, it's up to 20 years. I'm intrigued by the Spann killing. We need to get more facts from Defense and CIA, but we know that Spann interrogated Walker, then the riot broke out, Walker was wounded and Spann killed. It may be that Walker was a principal, an aider and abettor, or a conspirator. If the facts are there, I'd go with that. Especially because if we charge treason, a jury could go with the homicide instead. My staff leans toward charging Walker with a single count of providing material support to a terrorist organization under 18 U.S.C. 2339A. But I don't like it. It's only worth ten years, maximum. Worse, the term material support hasn't been authoritatively defined by the courts, and I'm not sure that the statutory definition in 18 U.S.C. 2339B fits Walker. It seems to me that Walker didn't provide anything material to the Taliban or Al Qaeda. It was the other way around. And I don't see how conspiracy or aiding and abetting helps us here. Also, it doesn't give us much bargaining power with Walker. If he's just looking at ten years, Brosnahan might advise him to throw the dice with a jury. Poor kid, and all that devil-made-me-do-it nonsense. But if Walker's looking at death or a good many years, maybe the ten would be attractive. Procedurally, we bring him back by air into Virginia, and we have him in a good district to try a treason case. Tough juries. That's why we have Moussaoui there. Let's see what the staff recommends, but that's how I see it now.

 

THE CHARGES

( Published January 16, 2002) Chapter 1 in the tale of John Walker began when CNN broadcast photos and an interview with the filthy, wounded Taliban/al-Qaeda fighter. It ended with his transfer to first one Navy ship and then another in the Arabian sea. Chapter 2 has consumed us for the past several weeks, while the public and press debated and speculated over what Walker could, and should, be charged with. I have written here and elsewhere that while a treason indictment and conviction was not nearly as difficult as some have claimed - and that Walker should be indicted for that crime - in light of the unwillingness shown by successive American administrations to charge treason, against even the Rosenbergs and renegade American intelligence agents, I doubted that Walker would be so charged. I ruled out trial by military tribunal. Instead, it seemed to me that a good charge, in a federal district court, would be under 18 United States Code 2332 and 18 United States Code 371: conspiracy to kill Americans. Another possibility I raised was providing "material support" to a terrorist organization, either as a principal or an aider and abettor or a conspirator. And I believed the Moussaoui prosecution laid by the government in Alexandria, Virginia, portended that's where Walker would be tried. Chapter 3 began on Tuesday, with Attorney General Ashcroft's announcement of the filing of a criminal complaint against Walker in that very federal district. Significantly, Walker has been charged under 18 U.S.C. Sections 371 and 2332 for engaging "in a conspiracy to kill nationals of the United States . . . engaged in the ongoing conflict in Afghanistan." He has also been charged, in two counts, under 18 U.S.C. Sections 2339B, 371 (conspiracy), and 2 (aiding and abetting) with providing material support to the foreign terrorists organizations Harakat ul-Mujahideen and al-Qaeda (even though Section 233B lacks authoritative judicial construction). (The fourth, and last, charge of the complaint alleges that Walker provided blocked goods and services to the Taliban - a crime paling in comparison to the other three). Although none of the charges carry the death penalty, Walker is looking at a potential life sentence. The facts supporting the government's criminal complaint against Walker fall into three categories. First, his own admissions. Next, his interview by CNN. Last, "preliminary reports of U.S. military and other personnel, as well as media accounts," concerning the prison uprising. In Walker's admissions to the FBI (legitimized by his oral and written waiver of whatever Miranda rights he may have had at the time), he stated that he: attended a training camp run by terrorists; met with Usama Bin Laden at least once; deployed with other al-Qaeda fighters on a front line opposing the Northern Alliance; trained with firearms and explosives, in battlefield combat, and for "special missions"; opted to fight in Afghanistan, on the front lines; was told that the group to which he would be assigned was Bin Laden's; heard lectures from Bin Laden; was thanked by Bin Laden for taking part in jihad; knew then that Bin Laden and al-Qaeda were "against America" and that "al-Qaeda's purpose was to fight Americans"; learned in early June 2001 from an instructor "that Bin Laden had sent people to the United States to carry out several suicide operations"; understood on September 11 or 12, 2001, "that Bin Laden had ordered the attacks [on the Pentagon and World Trade Center] and that additional attacks would follow"; told his CIA interrogators that he was a Pakistani. In his interview with CNN, which largely corroborates his statements to the Federal Bureau of Investigation, Walker stated that he: was a member of "Ansar," the Arab fighters who are funded and supported by Bin Laden; saw Bin Laden several times in the training camps. As to Walker's role in the prison uprising and death of Mike Spann, the government believes that the following are the facts: Spann and another agent were interrogating detainees; Spann photographed Walker, and one picture of him was recovered; afterwards, "a mass of prisoners converged upon Spann"; Spann was killed; Walker was shot in the leg during the melee; He and other prisoners retreated to the compound's basement, where they remained for several days. It is these facts that constitute the spine of the government's case against John Walker, and if proved it is these facts that will enable a jury to find him guilty. Conspiracy is proved by evidence showing an agreement to do something illegal (e.g., killing Americans in general, and/or Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). "The act in furtherance of the conspiracy" can even be something wholly legal (e.g., marching). Providing material support to terrorists is proved by evidence showing either direct assistance, or less direct aid to them coupled with the intent that they succeed. Conspiracy to provide material support is proved by evidence of an agreement to provide that support, and any overt act in furtherance. However, even though in these charges Walker is facing life in prison, there may be more in store for him. Attorney General John Ashcroft made it quite clear at his Tuesday press conference that the government has not closed the door on charging Walker with treason. Indeed, many of the acts recited above that serve as the predicate for the charges already brought against Walker could easily constitute acts of treason, and his intent to betray the United States could easily be inferred by a jury from those acts. For a treason prosecution, that would leave only two more elements. One, "aid and comfort," would not be hard to find. The last, two-witness proof is something that the Attorney General alluded to at the press conference. One had the impression from Ashcroft's remarks that if any Taliban/al-Qaeda prisoners - or anyone else, for that matter - possessed first-hand information about Walker's acts, a treason prosecution might well be in the offing. That, and other issues, will have to await Chapter 4.

 

THE INDICTMENT

Chapter 1 in the tale of John Walker began when CNN broadcast photos and an interview with the filthy, wounded Taliban/al-Qaeda fighter. It ended with his transfer to first one Navy ship and then another in the Arabian Sea. Chapter 2 consisted of silence about what was happening to Walker-Lindh, but much speculation about what would happen. I predicted no treason indictment, and charges being laid under 18 United States Code Sections 371 and 2332: conspiracy to kill Americans. Another possibility I suggested was providing "material support" to a terrorist organization. And I believed that Walker-Lindh (whom I, like his lawyers, will now call Lindh) would be "first brought" into the Eastern District of Virginia for trial. Chapter 3 consisted of the filing of a criminal complaint against Taliban John in that very district. It charged him with the Section 371 and 2332 crimes (conspiracy to kill Americans) and as an aider and abettor/conspirator on the "providing material support" crime. In explaining these crimes, I said that: "Conspiracy is proved by evidence showing an agreement to do something illegal (e.g., killing Americans in general, and/or Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). 'The act in furtherance of the conspiracy' can even be something wholly legal (e.g., marching). Providing material support to terrorists is proved by evidence showing either direct assistance, or less direct aid to them coupled with the intent that they succeed. Conspiracy to provide material support is proved by evidence of an agreement to provide that support, and any overt act in furtherance." Chapter 4 has just begun, with the filing of an indictment against Lindh. It differs from the criminal complaint filed against him a few weeks ago in significant respects, and in doing so reveals the government's strategy for how it intends to convict Lindh. The only way to grasp fully that strategy is by a count-by-count analysis of the indictment -- in part by contrasting it with the earlier (now superseded) criminal complaint. The first noteworthy point is that the government supported Lindh's arrest a few weeks ago simply on the basis of an "affidavit in support of a criminal complaint and an arrest warrant" signed by a Special Agent of the Federal Bureau of Investigation. Her allegations were not tested by anyone, and the arrest warrant was issued on the basis of the affidavit alone. In contrast, the indictment was laid on the basis of a formal presentation made to a grand jury by the United States Attorney for the Eastern District of Virginia. While neither Lindh nor his attorney appeared before the grand jury, nevertheless the government did have a burden to convince the grand jurors that there was probable cause to believe Lindh had committed crimes in violation of the United States Code. Apparently, the prosecutors succeeded in carrying their burden, the grand jury having issued a ten-count indictment. Next, it's worth looking at the usually benign caption of the case. It's "United States of America" versus not simply "John Phillip Walker Lindh," but following the defendant's actual -- if you will, American name -- the government has added "a/k/a [also known as] 'Suleyman al-Faris' and a/k/a 'Abdul Hamid'." Clearly, it would have been enough to name the defendant by his American name. However, by twice adding Lindh's noms de guerre, the government connotatively has succeeded in characterizing him, at least in part, as an Arab. The criminal complaint was, in its own words, "not intended to include every fact or matter observed by [the FBI Special Agent] or known by the Government," and, as we examine the indictment, we'll see why. The rather sketchy factual portion of the criminal complaint had provided information about the prison revolt, the Lindh-Walker interaction, and the Lindh-FBI interviews. The latter included details of Lindh's peregrinations, his al-Qaeda training, his contact with bin Laden, Lindh's military activities, and his knowledge of some of bin Laden's activities and intentions. Basically, that was it. Certainly, the criminal complaint did not present the history and nature of al-Qaeda, Harakat ul-Mujahideen (HUM), the Taliban, and the relationships of and connections between all three. Nor did the criminal complaint refer to Executive Orders recognizing the Taliban as a threat to the national security and foreign policy of the United States. Nor to the national emergency declared by President Bush as a result of the terrorist acts of September 11th. Nor to the United States military response. In contrast, the indictment has pleaded all of these facts, and it has done so as factual predicates to the ten counts charged against Lindh. Count One, "Conspiracy to Murder United States Nationals," incorporates all the facts alleged earlier in the indictment -- the most relevant ones being those describing his connection to the Spann murder, and Lindh's training and fighting with terrorists -- and on the basis of those facts, the indictment alleges that from May 2001 through December 2001 Lindh conspired to kill Americans, both civilian and military personnel. Remember that conspiracy requires an agreement and an overt act. As to the former, paragraphs 3 and 4 of the indictment allege that "members and associates of al Qaeda would commit terrorist acts and kill Americans around the world . . . and "members and associates of al Qaeda and the Taliban would violently oppose and kill American military personnel and other United States Government employees serving in Afghanistan after the September 11 attacks." In other words, there was a conspiracy of people and entities, with whom Lindh was associated, to commit serious crimes. What, then, were the overt acts -- proof of any one being sufficient to convict -- by either Lindh himself or any other member of the conspiracy, in furtherance of that conspiracy? Depending on how one reads the indictment, it pleads at least twenty-one overt acts. Lindh told HUM he wanted to fight with the Taliban in Afghanistan; he crossed from Pakistan into Afghanistan for that purpose; he presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; he agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; he traveled to, and stayed in, a bin Laden guest house; he trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; he met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; he met with a senior al-Qaeda to discuss where he would fight; he swore allegiance to jihad; he traveled to Kabul, where he was issued a weapon; he marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; he fought Northern Alliance troops; for four or five months he was under arms; he remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; he remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda; he retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison; he was interviewed by CIA agents, who were seeking to identify al-Qaeda members among the prisoners; he was in the prison when Taliban detainees attacked Spann and his colleague, overpowered the guards, armed themselves, and killed Spann; he retreated, though wounded, with other detainees to a basement; he remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out. In sum, the indictment's Count One charges that Lindh joined a terrorist conspiracy to murder Americans, and committed overt acts in furtherance of that conspiracy. If the government can prove that there was such a conspiracy, that Lindh joined it, and that he committed even one of these overt acts in furtherance of that conspiracy, the jury should convict. Count Two charges a second conspiracy, this one an agreement with persons, some known and others unknown, to provide material support and resources (defined in 18 United States Code Section 2339A(b)) to the foreign terrorist organization, HUM. The overt acts are those set forth above. In sum, if the government can prove that HUM was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should convict. Count Three is essentially the same count as Count Two. Whereas Count Two charged a conspiracy, Count Three charges Lindh as a principal in providing, or attempting to provide, material support and resources to HUM. For this, no agreement is necessary. Proof of an overt act so providing should result in a conviction. Count Four tracks Count Two. Whereas Count Two charges Lindh with a conspiracy to provide material support and resources to HUM, Count Four charges the same kind of conspiracy to al-Qaeda The overt acts charged are the same. The same proof that would be used to support Count Two would suffice for Count Four, so that if the government proved that al-Qaeda was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should similarly convict. Count Five is essentially the same as Count Three. It charges Lindh with being a principal in providing, or attempting to provide, material support and resources not to HUM as in Count Three, but rather to al-Qaeda. Here, no proof of an agreement is necessary. If the government proves that Lindh, by any of the overt acts charged, provided or attempted to provide the statutorily-defined "material support and resources" to al-Qaeda, the jury should convict. Count Six -- "Conspiracy to Contribute Services to al-Qaeda" -- and Count Seven -- "Contributing Services to al-Qaeda" -- charge that Lindh conspired with others to provide services to al-Qaeda, and that he did so himself. For proof of the conspiracy, the government will have to prove that al-Qaeda was a terrorist organization, that Lindh agreed with others to provide it services between roughly May and December 2001, and that he, or any other conspirator, committed any overt act charged in furtherance of the agreement. To prove that Lindh was a principal, any of the charged overt acts that provided services would suffice for a conviction. Count Eight -- "Conspiracy to Supply Services to the Taliban" -- and Count Nine -- "Supplying Services to the Taliban" -- are essentially the same as Counts Six and Seven, applying to the Taliban rather than to al-Qaeda. The proof analysis is the same. Count Ten -- "Using, Carrying & Possessing Firearms and Destructive Devices During Crimes of Violence" -- is an interesting charge. Under federal law, it is a crime to "use, carry and possess" items defined as "destructive devices" either during, in relation to, and in furtherance of certain crimes of violence for which one could be prosecuted in a United States Court. Certainly, as the factual predicate allegations of the indictment charge, Lindh used, carried and possessed two types of defined "destructive devices: rifles and grenades. It is charged that doing so was "during, in relation to, and in furtherance of crimes of violence" for which he could be -- indeed, he is being! -- charged in a United States court, to wit: Counts One and Counts Four through Nine inclusive. Although there is not much case law interpreting this statute, it seems pretty clear what the government has to prove: using, carrying and possession of destructive devices for use in certain crimes. This brings us back to the core of each of the government's first nine counts: the overt acts. Because it will be easy for the government to prove that HUM and al-Qaeda are terrorist organizations, that there was a conspiracy among and between those organizations and others, and that Lindh was with both organizations, his guilt or innocence as a principal, aider and abettor, and/or conspirator, will depend on whether he -- or, in the conspiracies, any other conspirator -- committed a requisite overt act. The government has charged over a score of those acts, and if even one is proved, Lindh ought to be convicted of virtually, if not actually, everything with which he is charged. I am often asked whether this indictment signals the last of the charges against Lindh? Maybe not. Asked at the press conference announcing the indictment about the possibility of a treason count, United States Attorney for the Eastern District of Virginia Paul J. McNulty said: "As far as other charges [are concerned], we have the opportunity or right to have a superseding indictment if the evidence justifies that." The fact is that since treason consists of (1) an intent to betray the United States, (2) expressed in an overt act, (3) testified to by two witnesses, (4) that gave aid and comfort to the enemy, given the facts set forth in the indictment, a treason charge awaits only two of the detainees in Afghanistan or Guantanamo who fought with -- or, for that matter, against -- Lindh to be deemed credible witnesses. Then, we may -- indeed, we should! -- see that superseding indictment to which the United States Attorney referred.

THE BAIL HEARING

A lot more happened at John Walker Lindh's bail hearing than has been reported. On the surface, the story was that the day following Lindh's indictment, a federal magistrate judge in the United States District Court for the Eastern District of Virginia denied his lawyers' application that their client be released on bail into the custody of his parents. What has not been analyzed, however, is what the bail hearing revealed about the defense's current strategy, the government's evidence, and the implications of the judge's ruling. The background to the bail hearing was the indictment filed the day before against Lindh. In essence, it charged that he conspired to kill Americans, and aided terrorist organizations that have murdered Americans. Also that he violated a federal statute criminalizing the use of firearms and other "destructive devices" in certain crimes of violence. There are several things that a bail hearing is not, from the defense perspective. It is not a proceeding in which the indictment may be attacked, evidence of innocence produced, or spellbinding jury speeches delivered. If the defense believes the indictment suffers from legal infirmity, it may make a motion to dismiss it. If the defense believes that there is evidence of its client's innocence, it can produce it at the trial. If the defense believes that there is something to be said about the government's failure of proof, it can argue that to the jury in summation. However, none of this is appropriate at a bail hearing, whose only purpose is to determine whether the defendant is to be freed pending trial. Whether or not he is, depends on the answers to only two questions: (1) is the defendant a danger to the community, or (2) is he a flight risk? The defense argued that despite the factual allegations of the indictment, Lindh is loyal to the United States, never had anything to do with terrorists, and fought only against the Northern Alliance. These assertions have little if anything to do with Lindh's application for bail — with whether he is a danger or a flight risk. What they are is a preview of Lindh's defense, if he goes to trial. (I predict that he won't, but that's for another essay). Lindh's lawyers seem to be telegraphing a defense which will consist of trying to show that Lindh, in effect, "didn't know the gun was loaded." That he was just a poor, itinerant scholar wandering the world in search of Truth when somehow he became caught up in the swirl of armed hostilities between persons and organizations with whom he had no relationship. For this absurd contrivance to work with a jury, one has to believe that the government won't prove any of the overt acts charged in the indictment; to wit: Lindh told HUM he wanted to fight with the Taliban in Afghanistan; he crossed from Pakistan into Afghanistan for that purpose; he presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; he agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; he traveled to, and stayed in, a bin Laden guest house; he trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; he met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; he met with a senior al-Qaeda to discuss where he would fight; he swore allegiance to jihad; he traveled to Kabul, where he was issued a weapon; he marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; he fought Northern Alliance troops; for four or five months he was under arms; he remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; he remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda; he retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison; he was interviewed by CIA agents, who were seeking to identify al-Qaeda members among the prisoners; he was in the prison when Taliban detainees attacked Spann and his colleague, overpowered the guards, armed themselves, and killed Spann; he retreated, though wounded, with other detainees to a basement; he remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out. Perhaps Lindh's defense lawyers can somehow convince a jury that not one of these overt acts occurred. But if they can't, there is no defense — not the one floated by defense counsel at the bail hearing, nor any other. This is all the more so when we examine the evidence presented by the government (and the tone in which it was presented) at the bail hearing — evidence nominally submitted on the bail question of danger and flight, but telegraphing some of what the government can offer at a trial. One of the prosecutors didn't pussyfoot around: "John Walker Lindh is a committed terrorist . . . . He not only talked the talk, but he walked the walk, carrying hand grenades and firearms and referring to his al Qaeda brothers." In addition, the government cited much of what we already know about Lindh's attitude (e.g., his approval of the Cole bombing), which the prosecutors appropriately characterized as demonstrating "a pattern of hostility toward the United States." More important, the government buttressed this pattern with heretofore unseen correspondence from Lindh to his mother: the American government bombed its own African embassies; "what has America ever done for anybody?"; it was an American official who encouraged Saddam Hussein to invade Kuwait; the Pentagon was a good target. Doubtless the government possesses even more correspondence that demonstrates Lindh's animus toward his own country — an animus that will go far to explain his motivation for the many overt acts with which he is charged. This evidence, unlike the defense's smoke and mirrors, did relate to the only two questions before the judge at the bail hearing. Clearly, the government was attempting to show that Lindh was dangerous and did pose a flight risk. The judge listened for some forty-five minutes and then immediately rejected Lindh's request for bail in what The New York Times characterized as "a swift and firm ruling." Lindh will remain incarcerated pending trial, if there is one. The judge's comments are instructive. He rejected out-of-hand the defense assertion that Lindh was a loyal American. Fox News Channel quoted the judge as saying that while "it may be argued by the defense that the defendant is a loyal American . . . the evidence before the court belies that assumption." The judge observed that with Lindh facing up to three life sentences plus an additional ninety years, he had every incentive to flee, and there were no conditions he could impose that would guarantee Lindh's appearance for trial. Giving short shrift to the defense's contention that if bail were granted Lindh would not flee because he'd have a supportive family, the judge ruled: "I find he has no social or economic stability, only a three-week stint of warehouse work some years ago . . . [and] had been out of the country from February 2000 until January 23 [2002] when he was brought here, and virtually no contact with his parents for two years. These are not the family ties that can rebut the presumption in favor of the government." The judge also ruled that Lindh did, indeed, pose a danger to the community, given the charges against him. Especially Count Ten —"using and carrying a firearm and destructive device during crimes of violence" — which, according to the judge, plainly argued in favor of the government's effort to detain Lindh without bail. One of the judge's remarks and rulings in particular do not portend well for Lindh should he go to trial. If a judge at a mere bail application — hearing just the little evidence offered by the government to counter the defense's empty assertion that Lindh was "a loyal American" — could quickly conclude and rule that such an "assumption" was erroneous, we can only imagine a jury's reaction when it is inundated with the proof available to the government, showing just how disloyal Lindh actually was. If "loyal American" is to be the centerpiece of Lindh's defense, it is doomed to fail and he will be convicted — for if even some of the charged overt acts can be proved, manifestly Lindh was anything but a "loyal American." Lindh's defense team can't fail to know this, so, for the moment they are obfuscating while trying to get some leverage for the inevitable plea bargain negotiations with the prosecutors. They will try to suppress Lindh's statements to CNN (Does a reporter have to give a captured enemy prisoner Miranda warnings?), as well as his voluntary statements to the FBI. After they lose their suppression motion, they will bargain. The dance has begun. In his remarks outside the courtroom, Lindh's lead lawyer has already gently chastised Attorney General John Ashcroft for his extra-judicial remarks. Lindh's lawyer also complained that by indicting his client, the government had "brought up the cannon to shoot the mouse." Wrong metaphor, Mr. Brosnihan. Actually, the government, not inappropriately, has brought up the cannon to shoot the rat.

 

READING BROSNAHAN'S MIND

Well, so far the ride has been pretty interesting. Here we got this kid from Marin County who winds up being flushed out of a nowhere Afghan dungeon with his al-Qaeda buddies after some CIA guy gets killed. The country wants Lindh's head. The administration's obliging. And I'm supposed to defend him. Until now its been hoopla time. Demanding I be allowed to see him in Afghanistan. Complaining he's been denied counsel. Accusing the feds of coercing him. Arguing Lindh wasn't dangerous or a flight risk. Holding sidewalk press conferences. Trying to delay the trial. Claiming Lindh had nothing against America. But now it's getting serious. The magistrate blew us out of court on the bail request. Saw through the smoke in a minute. Then the feds ambushed us with those damn emails. The kid blames the government for blowing up its own embassies in Africa. What a witness he'd make! The government's got this ten count indictment. Mostly conspiracy. All they need is an agreement to commit a crime, and any act in furtherance by anyone. A couple dozen acts, they charge. And most of them he did. They really want to nail him. The Assistant US Attorney calls Lindh a committed terrorist who not only talked the talk, but walked the walk. Pretty good. Pretty effective. Spann's widow was in court, lobbying for the death penalty. His father spurned a conciliatory gesture from Lindh's father. Let's say the government can prove what's in the indictment. What's the defense? What have I got? Let's start with the statements. The statements to CNN come in. With them and with the evidence the government has from other sources, that's probably enough to prove the conspiracy. Or more than one. With the statement to the Bureau in evidence, it's overkill. So, even if the statements to the FBI are excluded, and they probably won't be, we're looking at a conviction. I don't need the TV talking heads to tell me that. But if we make a strong suppression motion on all the statements, even if we lose it has potential juror educational value. Threats, coercion, bad food. Young kid. OK, so we move to suppress all his statements. Some come in, maybe some don't. Either way, there's enough to go to the jury. What then? Lindh thought he was fighting against the Northern Alliance. Right. He really loved America. Right. Mental defect or disorder. Not according to the CNN reporter and video tape. Lindh was treated poorly by our troops in Afghanistan. Well, the government won't let the jury forget he was a captured fighter. And none of this is a defense, anyhow. We come back to the indictment. Even if all Lindh's statements are suppressed, even to CNN, can the government prove that there was an agreement to commit at least one crime, that Lindh joined that conspiracy, and that someone, anyone, did something to further the agreement, even if Lindh didn't know it? If the answer is yes, the jury can convict. And then there's the problem of putting Lindh on the stand. What can he say? Those damned overt acts are staring us in the face. How's he going to explain them? His intent can be inferred from the acts. Even if he committed half of the twenty or so. This isn't like my teaming up with the Special Prosecutor to nail Cap Weinberger for Iran-contra. Or trying to sink Rehnquist's nomination for Chief Justice. Or even my political defense of that Irish murderer. No, we have here a pretty simple case. Lindh did what he did, and the government can probably prove it. If they do, he does a lot of time. I'm a realist. So better keep blowing smoke, make a tough suppression motion, and look for a deal if the kid agrees. But then, he may not. Maybe he has the strength of his convictions. That's not a great pun.

 

THE DISCOVERY MOTION

On Monday, John Walker Lindh's lawyers were in Virginia federal court making what lawyers call a "discovery" motion, trying to obtain information from the government bearing on their client's defense. Apparently treated as routine by the media - Associated Press ran a short wire service story; CNN had little to report - the hearing was anything but routine, especially because of one particular card the defense tried to play. To understand the defense tactics at play in its discovery motion, we have to differentiate between different kinds of material. Although the government has already turned over to the defense literally thousands of pages of material, Lindh's lawyers had requested thousands more. Some they will get. Much they will not. Nearly forty years ago, in the case of Brady v. Maryland, the Supreme Court of the United States held that in a criminal case the prosecution must turn over to the defense any material in its possession, even if it only might tend to exculpate the defendant. There is no argument in the Walker-Lindh case about this so-called Brady Material. The defense knows that it is entitled to it, and the government knows its responsibility - let alone what could happen if it failed to comply with the Brady requirement. Indeed, several times at the hearing the judge reminded the prosecution of its duty to provide exculpatory material to the defense. Lindh's lead defense lawyer also sought a more detailed indictment, in an attempt to narrow the charges against his client. The judge denied the request, reminding the defense of something they know very well: that Lindh is not charged with trying to kill specific Americans. Because the judge did not "read the indictment as pointing to a specific murder," he stated that the government was "not required to show that [Lindh] shot at Americans." On the contrary, as the Associated Press reported, the judge clearly understood that the indictment charges Lindh with "joining a broad conspiracy by al-Qaida and the Taliban to kill Americans around the world." And proof of that conspiracy requires only that there have been an agreement to do so, that Lindh was one of those who agreed, and that any member of the conspiracy committed an overt act in furtherance of that agreement - even if the act was legal unto itself. The next piece of discovery the defense sought was "access" to someone designated as "CS [confidential source] -1." Doubtless this refers to the CIA agent, "Dave," who, with the deceased Mike Spann, interrogated Lindh when he was flushed out of the prison basement. This request introduces the concept of "graymail" - a tactic used by defense lawyers in national security cases. The idea is for the defense to seek in discovery highly sensitive material and information so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn't want). All that prevents graymail from succeeding is a judge who will decide that the sought discovery is either irrelevant or so sensitive that either the defense can't have it or, if it can have it, the material is delivered, held, and used, under carefully crafted safeguards. Since all that the defense can legitimately want from "Dave" is information about the aborted interrogation of its client, which the government is apparently willing to provide, it will be surprising if the judge allows the defense anything more than an opportunity to interview "Dave." It is unlikely that a graymail attempt to learn his identity or anything else about him will succeed. Furthering the graymail tactic was a defense request for "access" to, and information about, the detainees being held in Guantanamo. The prosecution requested, and received, more time to sort out that one. If the government objects, the judge will probably require the defense to make a very strong showing of relevance. But even that will have to overcome what are bound to be serious national security considerations. All in all, the defense's tactics at the discovery hearing were predictable: seek Brady Material that Lindh is entitled to, and that the government would produce anyhow; request every piece of paper in the government's possession that in any manner whatsoever has anything at all to do with Lindh; try to narrow the indictment to make the government prove what it has not alleged (and thus can't prove); and throw in a dash or two of graymail. I predict, however, that this judge will not allow the defense to go on a fishing expedition. He will make sure (though he doesn't have to) that Brady Material is provided; he will direct the government to deliver only relevant documents; he will allow the indictment, charging only an easy-to-prove conspiracy, to stand as drawn; and he will not allow the defense to succeed in its graymail game. Next comes the defense motion to suppress Lindh's various statements. Stay tuned.

 

THE CONVENTIONAL WISDOM

Newsweek magazine's April 15, 2002, issue has published an article by Steven Brill entitled "End of Their Rope," carrying the subtitle "The Feds threw the book at John Walker Lindh, whetting the nation's appetite for vengeance. Too bad the evidence is so weak." Putting aside that the Justice Department has, unfortunately, not thrown the book at the American Taliban — he should have been indicted for treason — Brill's analysis reveals how little he understands about the law of conspiracy that Lindh has been charged with violating, and how much Brill has ignored the facts of the Taliban John case. If this were one person's error, there would be little reason to reproach Mr. Brill. However, because of his reputation in the legal community, because the article appears in Newsweek and thus with its imprimatur, and because Mr. Brill's lack of confidence in the Lindh prosecution is apparently shared by many others, lawyers and laypersons alike, it's necessary to identify and explain his mistakes. Brill holds that "If pretrial hearings and the court papers exchanged so far are any indication, 'American Taliban' John Walker Lindh seems destined to join a long roster of infamous defendants in famous cases who prove that the American legal system often won't give the bad guys the punishment most people think they deserve." He grounds this opinion on an incredibly superficial statement of the law of conspiracy — "To get a conviction . . . prosecutors would at least have to show that Lindh agreed with someone, somewhere and somehow to kill Americans or to aid Al Qaeda" — and on what Brill characterizes as a lack of evidence — "between slim and none" — in the hands of federal prosecutors Let's begin with the law of conspiracy, which is not at all complicated or difficult to understand. To prove a federal conspiracy, the prosecution must show two things: (1) the defendant agreed with even one other person to commit a federal crime, and (2) anyone who so agreed, then committed any act — even a perfectly legal one — that furthered their agreement. For example, Bill and Al, over coffee at Starbucks, agree to hold up the federally insured bank across the street the next day, and then make their escape in an automobile. Bill then purchases a car — a perfectly legal act, but one in furtherance of the conspiracy between the two of them to rob the bank. The crime is then complete, without anything else happening. Thus, contrary to Brill's snide "someone, somewhere and somehow" assertion, all that Lindh's prosecutors have to prove is either that others agreed to commit a federal crime and Lindh then agreed to participate, or that Lindh agreed with at least one other person to commit a federal crime. (Brill's "somewhere" requirement is devoid of meaning because there's always a "somewhere" somewhere. Equally empty is his "somehow" requirement, because all that's required is an agreement, and that's surely "somehow"). What, then, according to Brill, has Lindh been charged with agreeing to do? "The government' case, such as it is, is twofold: First, Lindh was caught fighting for the Taliban. Second, he allegedly confessed to FBI agents in Afghanistan after he was caught that he knowingly enlisted in Al Qaeda's terror campaign against America." Conveniently, Brill ignores the obvious question of how Lindh came to be "fighting for the Tailban." Could it be that Lindh agreed to fight for them? As to Lindh's confession that he joined (agreed?) an anti-American terror campaign, Brill impugns the admissibility of Taliban John's statements (a legal question yet to be decided). Thus, what Brill has done in these two sentences is to create a straw man and then blow him down — and thus avoid confronting the actual charges against Lindh. Of the ten counts in the indictment against Lindh, five are for conspiracy. Count One charges that Lindh joined an existing terrorist conspiracy to murder Americans (anywhere in the world) and committed overt acts (one is enough) in furtherance of that conspiracy (even if the act itself was legal). If the government can prove that there was such a conspiracy (hardly a difficult task), that Lindh joined it (the discovery motion judge recently asked rhetorically why Lindh was in Afghanistan), and that he committed even one overt act in furtherance of that conspiracy, the jury should convict. Count Two charges a second conspiracy: an agreement with persons, some known and others unknown, to provide material support and resources (defined in 18 United States Code Section 2339A(b)) to the foreign terrorist organization, HUM (which Brill doesn't even mention). If the government can prove that HUM was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should convict. Count Four tracks Count Two. Whereas Count Two charges Lindh with a conspiracy to provide material support and resources to HUM, Count Four charges the same kind of conspiracy with al-Qaeda. The overt acts charged are the same. The same proof that would be used to support Count Two would suffice for Count Four, so that if the government proved that al-Qaeda was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should similarly convict. Count Six — "Conspiracy to Contribute Services to al-Qaeda" charges that Lindh conspired with others to provide services to al-Qaeda, and that he did so himself. For proof of the conspiracy, the government will have to prove that al-Qaeda was a terrorist organization, that Lindh agreed with others to provide it services between roughly May and December 2001, and that he, or any other conspirator, committed any overt act charged in furtherance of the agreement Count Eight — "Conspiracy to Supply Services to the Taliban" — is essentially the same as Count Six, applying to the Taliban rather than to al-Qaeda. The proof analysis is the same. In each of these counts, the word "conspiracy" is synonymous with the term "agreement." In other words, the government is charging that Lindh agreed with an existing terrorist organization to kill Americans (e.g., at the prison uprising), that he agreed with anyone to supply material support and resources to HUM and/or al-Qaeda, and that he agreed with anyone to supply services to HUM and/or al-Qaeda. This leaves us to consider only the overt acts charged against Lindh, allegedly committed in furtherance of these five discrete conspiracies. Depending on how the indictment is read (because some charges imply more than a single act), it pleads more than a score of overt acts: Lindh told HUM he wanted to fight with the Taliban in Afghanistan; He crossed from Pakistan into Afghanistan for that purpose; He presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; He agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; He traveled to, and stayed in, a bin Laden guest house; He trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; He met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; He met with a senior al-Qaeda to discuss where he would fight; He swore allegiance to jihad; He traveled to Kabul, where he was issued a weapon; He marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; He fought Northern Alliance troops; He was under arms for four or five months; He remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; He remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda; He retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-I Janghi prison; He was interviewed by CIA agents, who were seeking to identify al-Qaeda members among the prisoners; He was in the prison when Taliban detainees attacked Spann and his colleague, overpowered the guards, armed themselves, and killed Spann; He retreated, though wounded, with other detainees to a basement; he remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out. Not only has Brill ignored all this in his Newsweek article, with equal superficiality he has also erroneously labeled the indictment's other five counts with the meaningless characterization of "the lesser charge of aiding the enemy." Here are those additional counts. Count Three is essentially the same count as Count Two, but with one important difference. Whereas Count Two charged a conspiracy, Count Three charges Lindh as a principal in providing, or attempting to provide, material support and resources to HUM. For this, no agreement is necessary. Proof of an overt act (see above) providing material support and resources should result in a conviction. Count Five is essentially the same as Count Three. It charges Lindh with being a principal in providing, or attempting to provide, material support and resources not to HUM as in Count Three, but rather to al-Qaeda. Here, again, no proof of an agreement is necessary. If the government proves that Lindh, by any of the overt acts charged, provided or attempted to provide the statutorily defined "material support and resources" to al-Qaeda, the jury should convict. Counts Seven and Nine, respectively, charge Lindh as a principal in providing services to al-Qaeda and the Taliban. Yet, again, no agreement is necessary. Count Ten — "Using, Carrying & Possessing Firearms and Destructive Devices During Crimes of Violence" — is an interesting charge. Under federal law, it is a crime to "use, carry and possess" items defined as "destructive devices" either during, in relation to, and in furtherance of, certain crimes of violence for which one could be prosecuted in a United States Court. Certainly, as the factual predicate allegations of the indictment charge, Lindh used, carried and possessed two types of defined "destructive devices: rifles and grenades. It is charged that doing so was "during, in relation to, and in furtherance of crimes of violence" for which he could be — indeed, he is being — charged in a United States court, to wit: Counts One and Counts Four through Nine inclusive. Although there is not much case law interpreting this statute, it seems pretty clear what the government has to prove: using, carrying, and possession of destructive devices for use in certain crimes. This brings us back to the core of each of the government's first nine counts: the overt acts. Because it will be easy for the government to prove that HUM and al-Qaeda are terrorist organizations, that there was a conspiracy among and between those organizations and others, and that Lindh was connected to both organizations, his guilt or innocence as a principal, aider and abettor, and/or conspirator, will depend on whether he — or, in the conspiracies, any other conspirator — committed an overt act. The government has charged over a score of those acts, and if even one is proved, Lindh ought to be convicted of virtually, if not actually, everything with which he is charged. Yet Newsweek's Steven Brill — other than grudgingly opining that the non-existent "lesser charge of aiding the Taliban . . . does seem strong" — thinks otherwise. As do too many other uninformed people. If Lindh doesn't take a plea — I have predicted, from the beginning, that he will — when the jury goes out on Tailban John, it will also go out also on Mr. Brill's and his fellow naysayers' erroneous prognostications.

 

GOVERNMENT WRONG NOT TO HAVE INDICTED TALIBAN JOHN FOR TREASON

Several weeks ago I wrote that all American administrations since World War II have had an aversion to indicting for treason. For example, some of the most notorious American spies for the Soviet Union have not been charged with treason: the Rosenbergs, the Walker-Whitworth ring, Aldrich Ames, Robert Hanssen, Richard W. Miller. There were others, including Larry Wu-Tai Chin, who spied for China. Accordingly, I opined that Taliban John Walker would not be indicted for that "mother of all crimes." All the more so, I thought, because since early in the case President Bush had expressed sympathy for Walker. Now, unfortunately, I have been proved correct. President Bush, despite his recent tough talk about how John Walker will have to suffer the consequences of his conduct, has opted not to have Taliban John charged with treason. Apparently, the president and/or his advisors believe either what many pundits have been predicting - that Walker can't be convicted of treason - and/or they have allowed political considerations to drive the decision. Legally, at least, Walker could have been indicted and convicted of treason, as the law and the facts of the Walker case make plain. Let's begin with the law. There are only three crimes mentioned in the Constitution - piracy, counterfeiting, and treason - the latter being the only one defined: "Treason against the United States, shall consist only in levying war against them, or, in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." (Article III, Section 3, paragraph 1). The meaning of the "levying war" prong of the crime has not been interpreted by the Supreme Court in modern times. For that reason, and because the prong's history suggests that a prosecution of Walker for levying war would be problematic, we need to focus on the "aid and comfort" prong - which is easier to prove. In the Twentieth Century, only eight treason cases - all arising out of World War II - were decided by federal appellate courts. Five of them were "broadcast" cases (four for aiding the Germans, one for aiding the Japanese) decided by United States Courts of Appeal. Together with the other three cases, decided by the Supreme Court of the United States, the eight laid the modern ground rules for conviction of treason on the "aid and comfort" prong of the crime. The first Supreme Court case was Cramer v. United States. An American citizen was charged with aiding a Nazi saboteur who was tried and convicted by a Military Tribunal. Although Cramer was convicted by a trial court and his conviction upheld by a Court of Appeals, the Supreme Court reversed, 5-4, because the majority and the dissent disagreed about whether Cramer's conduct had actually provided "aid and comfort" to the Nazis. Next came Haupt v. United States, where the American citizen father of one of the saboteurs was charged with aiding his own son. Haupt, Sr., was convicted, his conviction upheld on appeal, and the Supreme Court affirmed. The last of the Supreme Court's trilogy of treason cases was Kawakita v. United States. The defendant, another American citizen, became a straw boss over American POWs in Japan, torturing and otherwise brutalizing them. His treason conviction on the "aid and comfort" prong was upheld on appeal, and affirmed by the Supreme Court. In these three cases, and in the five broadcast cases, the Supreme Court of the United States interpreted the "adhering to their enemies, giving aid and comfort" language of Article III as requiring a treason prosecutor to prove four elements in order to get a conviction: (1) the defendant's intention to betray the United States, (2) manifested in an overt act, (3) testified to by two witnesses, (4) which gave aid and comfort to the enemy. (A declaration of war is unnecessary; mere hostilities are enough). These are all jury questions. This means that if there is reason to believe the accused's conduct may have satisfied these four proof requirements, he can be indicted - as Walker should have been - and if a jury agrees that his conduct did satisfy them, he can be convicted. This is the law of treason and, despite what some have tried to argue, there is nothing arcane or complicated about it. Whether a conviction can be had from a jury in a treason case depends, then, on the facts. What are the known facts of the Walker case, to which the law of treason must be applied? What we know from Walker himself so far - and the government doubtless knows much more from its several weeks of interrogations- is that he trained in two al-Qaeda terrorist camps, he marched some 100 miles with al-Qaeda fighters through Northern Afghanistan, he participated in the Qala Jangi prison revolt where he was wounded, he was in close proximity to the killing of American CIA agent Mike Spann, and he claimed to know that biological terrorist attacks would occur soon after the end of Ramadan. There is no doubt that these acts - or even any one or a combination of them - would allow a jury to conclude they satisfied the overt act requirement for treason. Indeed, in the Haupt case the father helping his Nazi saboteur son obtain reemployment at a sensitive defense plant, giving his son a place to live, and purchasing a car for him, were held sufficient overt acts for treason. In the World War II broadcast cases, merely making the radio broadcasts were sufficient overt acts. And in the Kawakita case, abusing American prisoners of war was sufficient. In other words, according to the Supreme Court's rulings in the eight World War II treasons cases, virtually any act against the United States can be construed by a jury as an overt act sufficient to satisfy the government's burden of proof in a treason prosecution. Since the law allows Walker's intent to betray the United States to be inferred from his act(s), just as a jury could find that Walker committed the requisite overt act, a jury could easily conclude that Walker possessed the requisite treasonous intent. As the Supreme Court said in the Chandler case, "In the law of treason . . . every person is assumed to intend the natural consequences that he himself knows will result from his acts. And, in this case, if [the jury finds that] Chandler committed a voluntary act or acts which actually gave aid and comfort to the enemy and at that time he knew, or with his knowledge had reason to know that the natural consequence of his act would be that aid and comfort would result to the enemy in the conduct of its war against the United States, [the jury] would be warranted in finding from the commission of the acts themselves that he intended to give aid and comfort to Germany, that he intended to adhere to the enemy . . . . Motive cannot negative an intent to betray. . . . Where a person has an intent to bring about a result which the law seeks to prevent, his motive is immaterial." This principle - the distinction between "motive" and "intent" - wholly disposes of every conceivable "poor confused boy"-type defense Walker's parents, lawyers, and supporters doubtless would have contrived. Walker's motives would have beend irrelevant! As to "aid and comfort," in the Haupt case the Supreme Court held that the jury had a right to conclude that Haupt Sr.'s efforts on behalf of his son - the job, the automobile, the shelter - aided the Nazis. And in each of the World War II broadcast cases, the Supreme Court reached the same conclusion - as it did concerning Kawakita's abuse of American prisoners of war in Japan. Thus, there is more than enough evidence from which a jury could have concluded that Walker's act(s) - training with terrorists, marching with terrorists, fighting with terrorists, revolting with terrorists, trying to escape with terrorists, and perhaps even killing an American with terrorists - provided aid and comfort to the enemy of the United States. That leaves the requirement that the overt act(s) have to be testified to by two witnesses. Among all of the Northern Alliance troops, captured Afghan Taliban and al-Qaeda fighters, and American civilian and military personnel, surely the government can produce two witnesses to at least one overt act by Walker. Surely among the many who knew Walker, especially at the Qala Jangi prison, there would have been two who knew of at least one of his acts, if not more. Like the questions of Walker's intent, his commission of an overt act(s), and that act(s) giving the enemy aid and comfort, two-witness proof would also have been a question for the jury. Thus, in light of the law of treason and the facts of the Walker case, there is no doubt that he could have been indicted - and convicted! - of treason against the United States of America. Our national security is worsened for his not having been..

 

TALIBAN JOHN IS INDICTABLE AND CONVICTABLE FOR TREASON

In the Twentieth Century, eight treason cases arising out of World War II established four elements for conviction on the "aid and comfort" prong of the crime: (1) intention to betray the United States, (2) manifested in an overt act, (3) testified to by two witnesses, (4) giving aid and comfort to the enemy. (A declaration of war is unnecessary; mere hostilities are enough). This means that if Walker's conduct may have satisfied these requirements, he can be indicted; if a jury agrees that his conduct did satisfy them, he can be convicted. What we know from Walker himself is that he trained at two al-Qaeda camps, marched some 100 miles with al-Qaeda fighters, participated in the prison revolt where he was wounded, was close to the killing of Mike Spann, and claimed to know that biological attacks would occur soon after Ramadan. There is no doubt that these acts - or even any one or a combination of them - would allow a jury to conclude they proved the overt act requirement for treason. In the Haupt treason case, the father helping his Nazi saboteur son obtain reemployment at a sensitive defense plant, giving his son a place to live, and purchasing a car for him, were held sufficient overt acts for treason. In the World War II broadcast cases, merely making the radio broadcasts were sufficient overt acts. And in the Kawakita treason case, abusing American POWs was sufficient. In other words, virtually any act can be construed by a jury as an overt act sufficient to satisfy the government's burden of proof in a treason prosecution. Proving Walker's intent would not be a problem, since the law allows it to be inferred from his act(s). As the Supreme Court said in the Chandler treason case, "In the law of treason . . . every person is assumed to intend the natural consequences that he himself knows will result from his acts." As to proving "aid and comfort," in Haupt the Court held that the jury had a right to conclude that the father's efforts on behalf of his son - the job, the automobile, the shelter - aided the Nazis. In each of the broadcast cases, the Court reached the same conclusion. So, too, Kawakita's abuse of American POWs. There is more than enough evidence for a jury to conclude that Walker's act(s) provided aid and comfort to the enemy. That leaves two-witness proof. Among the Northern Alliance troops, captured Taliban and al-Qaeda fighters, and American personnel, surely prosecutors can produce two witnesses to at least one overt act by Walker. Like the questions of Walker's intent, his commission of an overt act(s), and that act(s) giving the enemy aid and comfort, two-witness proof is also a question for the jury. Thus, in light of the facts of the Walker case and the law of treason, there is no doubt that, just as he can (and ought to) be indicted for treason, he can (and ought to) be convicted. America's national security will be strengthened by Walker's indictment - and even more by his conviction.

 

THE DESPERATE DEFENSE

It's obvious that despite its bravado, the John Walker Lindh defense camp is desperate. First, we saw two examples of "graymail," a tactic used by defense lawyers in national security cases. The idea is for the defense to seek in the discovery stage of the case highly sensitive documents and testimony so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government, understandably, is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn't want). The defense's first try at graymail sought not only testimony from CIA agent "CS-1" (probably the "Dave" who, with the late agent Mike Spann, interrogated Lindh just before the prison uprising during which Spann was killed), but also his identity. The defense lost that round. Graymail Round Two is the defense's so far unsuccessful attempt to interview Guantanamo prisoners via some sort of TV hook-up, rather than by written questions (interrogatories). In each case, the defense had at least three goals: (1) try to put the government on the horns of either complying with the discovery request and compromising secrets, or dropping the charges; (2) create sympathy for its client by demonstrating the government's unfairness; and (3) establish grounds for appeal. None of this has worked. Nor will it. The defense can prepare its case without knowing "Dave's" identity and without putting Guantanamo's orange-suited prisoners on TV (a ruling on the latter request is due at the end of the month) - and any complaint that the defense raises will go nowhere on appeal, on due process or on any other grounds. The second unmistakable sign of the Lindh defense's desperation is not so much that they are seeking to dismiss all or part of the indictment (this was predictable; that's what lawyers do), but rather the grounds on which they seek to do so. Grounds so far- fetched that one wonders how Lindh's lawyers could have asserted them with a straight face. I'll address the three most indefensible. "Combat immunity." Lindh's lead lawyer, James Brosnahan, and his team have made the absurd argument that the charge against their client should be dismissed because of some purported "well-established international law principle of combat immunity." The New York Times explained their theory this way: "They said the court should dismiss the charge of conspiracy to commit murder because all foot soldiers are immune from prosecution [for] actions during combat." Putting aside the question of whether so-called "international law" has any place in a federal criminal trial for violation of federal law, the fact is that neither the Supreme Court of the United States nor any other federal court has ever held that an American citizen charged with conspiracy to murder another American(s) - not actually murdering, during combat or at any other time, but rather conspiring to murder - possesses any kind of immunity under "international" or any other kind of law. "Freedom of association." More absurd than their "combat immunity" argument for dismissal of the indictment is the defense's contention that some of the charges against their client should be dismissed, in the words of The New York Times, "because they seek to punish him for merely associating with unpopular groups including the al-Qaida terror network" (emphasis added). The defense motion put the point this way: "Central to First Amendment freedoms is the right to associate with unpopular and disfavored groups." Presumably, Mr. Brosnahan would argue that John Gotti had a constitutional right to "associate" with Cosa Nostra regardless of what they were "associating" to do: commit murder, deal drugs, engage in extortion. The point here is that Lindh is not being charged with "associating" with two terrorist organizations - al-Qaeda and Harakat ul-Mujahideen - but rather that he joined a terrorist conspiracy to murder Americans, that he committed more than twenty (perhaps scores) of overt acts in furtherance of that conspiracy, that he conspired to provide material support and resources to those two terrorist organizations, and that he actually provided such support. Lindh's defense team might have a legitimate argument if the indictment against their client charged him with joining ("associating" with) some United States political party, but their contention that "associating" with terrorists and terrorist organizations is somehow constitutionally protected is silly. "Right to bear arms" In perhaps the most absurd argument of all, Lindh's lawyers are arguing that Count 10 of the indictment should be dismissed, also for a reason grounded in the Constitution of the United States of America. Count 10 is based on a federal statute that criminalizes "using, carrying and possessing firearms and destructive devices during crimes of violence." The count was alleged because the government believes Lindh used, carried and possessed rifles and grenades in his role - so characterized by his own lawyers - as a "foot soldier" for the Taliban. Additionally, the indictment charges that he did so "during, in relation to, and in furtherance of crimes of violence." Seems pretty clear. So what is Lindh's defense team's argument? When Lindh took up arms on behalf of the Taliban and al-Qaeda, according to his defense lawyers, he was doing nothing more than exercising his constitutional right to bear arms, as protected by the Second Amendment to the Constitution of the United States of America. That's correct; that's what they've argued to a United States District Judge in Alexandria, Virginia. And where did such a ridiculous notion come from? Why, from a footnote in a recent government brief filed in the Supreme Court in a case that had nothing to do with the Second Amendment, nothing to do with the Count 10 statute, and nothing to do with Lindh. The Justice Department's throw away line in that case - obviously not a judicial opinion interpreting the Second Amendment - is of no precedential value whatever. Under the defense's theory, the Second Amendment protects a possessor of firearms no matter what use he makes of them. Under the defense's theory, armed bank robbers are protected by the Constitution. The inconvenient fact is that Lindh is charged not with merely possessing firearms, but with using them in a manner inimical to the interests of the United States. (Doubtless, the NRA won't be filing a friend-of-the-court brief on behalf of Mr. Lindh.) If, then, these three arguments are so patently useless, the question necessarily arises as to why they have been made - especially in lieu of arguments which may have been stronger. To answer this question, it is necessary to understand the nature of a motion to dismiss specific counts of an indictment. An indictment is a charge of criminal wrongdoing. For example, Lindh has been charged with entering into an agreement with others to kill Americans. That's a legitimate crime under federal law. Pursuant to that charge, at the trial the government must produce proof that Lindh did make that agreement, and that any one of the conspirators committed any act in furtherance of the conspiracy. There is no way that defense lawyers can get such an indictment dismissed because conspiring to murder is a crime, and the government is entitled to an opportunity to show at trial that this is what the defendant did. On the other hand, if the government indicted a man for, say, marrying an unattractive woman for her money, that indictment would properly be dismissible. Why? Because however reprehensible that kind of gigolo conduct, it is not illegal, and because even if the government could prove that's what happened, it would not add up to a crime. In light of this, let's take another look at what Lindh is charged with: joining a terrorist conspiracy to murder Americans, committing more than twenty (perhaps scores) of overt acts in furtherance of that conspiracy, conspiring to provide material support and resources to those two terrorist organizations, and actually providing such support. All these are legitimate federal crimes, and the government has a right to produce evidence at trial to prove that this is precisely what Lindh did. Unless, somehow, the defense can prove that there are defenses to the crimes charged. If, legally, "combat immunity" is not a defense, if "freedom of association" is not a defense, if the Second Amendment is not a defense, if Lindh's motion to dismiss the indictment on these grounds is doomed to fail - and it is! - then why did the Brosnahan team make the motion? Because Lindh has no defense. Instead, his lawyers are shotgunning the government with baseless defenses and motions to dismiss in the forlorn hope that perhaps something will work. Nothing will. Surely the defense understands that if Lindh goes to trial, he will be convicted. The Lindh defense needs to be reminded that for someone in their client's position, the best defense is a good plea bargain - which is where this case will probably end up. Otherwise, Taliban John Walker Lindh will not breathe free air for a very long time.

 

THE NOOSE TIGHTENS

If there has been doubt in anyone's mind about the nature of the government's principal case against John Walker Lindh, last week's court filing by the United States Attorney should have dispelled it. To understand the significance of what the government's motion papers said, it's necessary to remind ourselves about what "conspiracy" means in federal criminal law, and then about what the indictment charges Lindh with having done. Conspiracy is proved by evidence showing an agreement (which can tacit, so long as it is clear) to do something illegal (e.g., killing Americans in general, and/or CIA operative Mike Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). The act in furtherance of the conspiracy can even be something wholly legal (e.g., marching). For now, let's focus just on the first count of the indictment. Count One, "Conspiracy to Murder United States Nationals," incorporates all the facts alleged earlier in the indictment ¾ the most relevant ones being those describing Lindh's connection to the Spann murder, and Lindh's training and fighting with terrorists. On the basis of those facts, the indictment alleges that from May 2001 through December 2001 Lindh conspired to kill Americans, both civilian and military personnel. Remember that conspiracy requires merely an agreement and an overt act. As to the former, paragraphs 3 and 4 of the indictment allege that "members and associates of al Qaeda would commit terrorist acts and kill Americans around the world . . ." and "members and associates of al Qaeda and the Taliban would violently oppose and kill American military personnel and other United States Government employees serving in Afghanistan after the September 11 attacks." In other words, the indictment charges that there was a conspiracy of people and entities, whom Lindh joined, to commit serious crimes against Americans. What, then, were the overt acts - proof of any one being sufficient to convict - by either Lindh himself or any other member of the conspiracy, in furtherance of that conspiracy? Depending on how one reads the indictment, it pleads at least twenty-one overt acts. Lindh told HUM he wanted to fight with the Taliban in Afghanistan; he crossed from Pakistan into Afghanistan for that purpose; he presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; he agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; he traveled to, and stayed in, a bin Laden guest house; he trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; he met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; he met with a senior al-Qaeda to discuss where he would fight; he swore allegiance to jihad; he traveled to Kabul, where he was issued a weapon; he marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; he fought Northern Alliance troops; for four or five months he was under arms; he remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; he