AMERICAN TALIBAN

	December 12, 2001
	Gwen Ifill discusses what could lie ahead for American Taliban fighter John Walker with Eugene Fidell, president of the National Institute of Military Justice, and Mary Cheh, professor at Georgetown University Law School.

GWEN IFILL: Two and a half weeks ago, when the Northern Alliance captured this Tailban prisoner, he went by the name of Abdul Hamid. He turned out to be a 20-year- old American from California, John Walker Lindh. In this video taken November 25, Walker, who uses his mother's last name, was shown handcuffed as two CIA agents interrogated him. The one kneeling was American Mike Spann, the other, a CIA operative identified only as Dave. SPOKESMAN: The problem is, he needs to decide if he wants to live or die and die here…If they don't talk to us, we can't … Do you know - do you know the people that you are working with are terrorists? They killed other Muslims. GWEN IFILL: Walker did not respond to the questions. Three hours later, Tailban prisoners rose up against their captors, sparking a deadly battle they would eventually lose -- among the casualties, the CIA's Mike Spann. After the battle, Walker went into hiding with 85 other Tailban prisoners, emerging six days later, dehydrated and suffering from a gunshot wound. Walker told a "Newsweek" reporter he supported the September 11 attacks. He's now being held at the U.S. Marine camp in southern Afghanistan. U.S. officials have not decided what to do with Walker. For now they call him a battlefield detainee. PRESIDENT GEORGE W. BUSH: Obviously he has been misled. It appears to me that he thought he was going to fight for a great cause when in fact he was going to support a government that was one of the most repressive governments in the history of mankind. Surely he was raised better to know that a government that suppress women and women's rights and doesn't educate young girls is not the kind of government that's worth dying for. GWEN IFILL: On Sunday Vice President Cheney said Walker had provided useful information. VICE PRESIDENT DICK CHENEY: He has been held in military custody in Afghanistan. Once I think we're through debriefing him, he will be turned over to civilian authorities, and as an American citizen, he's entitled to certain rights, and he'll be handled accordingly. GWEN IFILL: But the Pentagon and Justice Department have adopted a harsher tone. JOHN ASHCROFT: I would say very clearly that history has not looked kindly upon those that have forsaken their countries to go and fight against their countries, especially with organizations that have totally disrespected the rights of individuals, that make women objects of scorn and derision, that outlaw education, as is certainly the case. I can tell you that no person will be... No citizen of the United States will be tried in the war crimes tribunal. The commission order of the President indicates that that is limited to noncitizens. GWEN IFILL: Born in Washington DC, in 1981, Walker was named after the Beatle John Lennon. His family moved to Marin County north of San Francisco when John was ten. At 16 he converted to Islam, and dropped out of school, traveling overseas to learn and to study Arabic, Walker lived in Yemen and Pakistan. Then last spring, according to his father, John crossed into Afghanistan and joined the Tailban. FRANK LINDH: It was not a good decision, not a decision he checked with me on. But he went there in may to work with the Tailban government, probably not a good choice on his part. But he didn't go there to wage war against the United States. The United States got involved in the situation in Afghanistan, as we all know, in October after the terrible events of September. John got caught up in that. He was in the wrong place at the wrong time. GWEN IFILL: Today the "Washington Times" reported Walker has said al-Qaida's next attack on the United States will take place in days and involve biological weapons. U.S. officials have cast doubt on that report. So what lies ahead for John Walker? Our two guests have been following the case. Eugene Fidell is the president of the National Institute of Military Justice, and Mary Cheh is a professor at George Washington University Law School. She focuses on constitutional law and criminal justice procedure. So Gene Fidell, what are the options for dealing with John Walker? EUGENE FIDELL: First, a decision will have to be made as to whether he should be prosecuted at all. It may be that the greatest utility he has for the federal government as a witness rather than as a defendant. A list was circulated several days ago of potential offenses that could be considered in his case. And of course no one should prejudge this because a lot of facts would still have to be developed. But among the statutes on the list were the treason provision, provisions relating to the murder of federal officials, provisions relating to murder in connection with terrorism, and provisions relating to the murder of U.S. citizens overseas. GWEN IFILL: Professor Cheh, without jumping a head of ourselves to what he may be charged with, from what you know about this case, does it seem that treason is a reasonable application of the law in this case? MARY CHEH: Well, it's technically applicable, that is so say would consist of taking up arms against the United States. But it's a difficult charge to make because the Constitution specifically refers to it and requires a high level of proof. The reason for that is you don't want treason to be a charge thrown at opponents willy-nilly, and so the framers were quite worried about that. It's very difficult to prove, there have only been between 30 and 40 treason cases in the United States during our whole history. And there haven't been any recent ones since World War II. There were some people interested in trying to pursue Jane Fonda when she traveled to Hanoi, for treason, but nothing came of that. So there's a recognition that it is probably the most serious charge that can be brought against a citizen, and one that's quite, quite difficult to prove. But on the superficial facts that we know, it's possible to bring that charge against him if he was in fact taking up arms against the United States, and proof could be made out. GWEN IFILL: How high a level of proof is necessary, and why did the framers of the Constitution set the bar so high? EUGENE FIDELL: Right. The standard of proof is proof beyond a reasonable doubt. But the framers took care to provide-- and I'll refer to the Constitution itself, if that's all right-- to say what the proof had to consist of. It says that 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. The latter is a very, very unusual provision. Most confessions, as Professor Cheh can confirm, take place in the stationhouse or in a squad car. This is more the "Perry Mason" confession that happens on the witness stand. So these are... This is a very high level of proof that's required. GWEN IFILL: Professor Cheh, another term we have seen emerge in this case is the battlefield detention, he's a battlefield detainee. Why isn't he simply a prisoner of war? MARY CHEH: Well, you know, there's an argument that he could be a prisoner of war, and in some sense they may be treating him in part like a prisoner of war in that they're having the Red Cross visit him and allowing communications out and that sort of thing. But under the Geneva Convention if you take a prisoner, someone who has taken up arms against you, it doesn't have to be a formal army, it could be a militia, some force against you, and you take them prisoner on the battlefield, then the definition under that convention would make him a prisoner of war. So his very status is something I think that's confounding the authorities. GWEN IFILL: That's another point. Does this status mean, for instance, that Miranda rights apply to him? Does he have to have an attorney present on his behalf when he's questioned, which appears not to have happened? EUGENE FIDELL: He certainly didn't have an attorney when he was questioned in the film that you showed. The question is not whether he has a right to an attorney when being questioned. The question is, what use is going to be made of the answers that he gives when questioned, and there obviously would be an issue under Miranda versus Arizona, the Supreme Court decision that says a person who is questioned while in custody has to be alerted to the fact that he or she doesn't have to make any statements, any statements can be used against them and that they have a right to counsel and to stop the interrogation at any time. GWEN IFILL: You talked about the rarity of these cases. What is the precedent for pursuing on a U.S. citizen who is doing something which is perceived to be against U.S. law, or U.S. forces, more to the point? EUGENE FIDELL: The most recent types of cases that we've seen were the broadcasters during World War II. For example, Tokyo Rose, who broadcast encouragement to our GI's to give up the fight, basically. And similarly, there were broadcasters who were in Europe broadcasting on behalf of the Nazis to try to get our GI's to put down their arms. That kind of thing we take a very, very dim view of. But it's also interesting that the treason provision has been used in some other very unusual situations, including as early as the 1790s in connection with the whiskey rebellion in Pennsylvania. GWEN IFILL: Professor Cheh, short of treason, for a moment, assuming there are other possibilities, what are the other possibilities and how much more likely are they to be pursued? MARY CHEH: Well, you know, if I were looking at this as a prosecutor, of course prosecutors have prosecutorial discretion-- we don't have the full information. But assuming he was taking up arms against the United States, assuming that he was a participant in that prison revolt, and now I were thinking about the charges, I would think about what charges I could prove and what charges I would deem appropriate. And among the charges that I would consider if I were to pursue the case against Mr. Walker would certainly be support to terrorists and in particular a General conspiracy count, because a general conspiracy means that you've made an agreement, which doesn't have to be in writing, doesn't even have to be expressed, with others to commit an illegal act. Now that conspiracy count, the general conspiracy count, you can use a whole range of testimony that would otherwise not be admissible. You can avoid the very difficult proofs of treason, or you could just charge conspiracy to commit treason. And on top of that, it seems the general conspiracy statute carries a penalty which might make sense in this case given the odd circumstances, which is five years, as opposed to a potential death sentence. So there's a general conspiracy to commit a treason, conspiracy to aid terrorists, there are a variety of murder or manslaughter charges that may come out of his involvement in the prison revolt and the death of Mr. Spann, a United States citizen. But among those my favorite would be the friend of the prosecutor, a general conspiracy count. GWEN IFILL: Now, does he have to... Does he get a chance to defend himself in say a military tribunal like we have heard talked about so often? Would that apply in this case? EUGENE FIDELL: No. Because he's a U.S. citizen, assuming he hasn't relinquished his U.S. citizenship, he's outside the terms of the President's military order creating military commissions. And whether he has effectively renounced his citizenship by serving in a foreign army opens up a whole other range of issues. GWEN IFILL: It's obviously an... What he is alleged to have done is obviously wildly unpopular. What difficulty would he have in mounting a defense in this kind of situation? EUGENE FIDELL: Well, I think there will be great public hostility. But on the other hand, in fact it's suggested in President Bush's remarks that some recognition of the unusual factual basis behind all his conduct, on a certain level he's been on a spiritual journey, quite unusual, from a broken home to some extent I think, he's a young man; I think all of these factors would be taken into account in the kind of prosecutorial decision making that is the front end of the system. GWEN IFILL: Do you agree with that, Professor Cheh? MARY CHEH: Well, you know, as I said before, all of this is hedged by the concern of what the ultimate facts show. But if they show that Mr. Walker was involved, he was armed, engaged in military action against the United States and its allies, that he participated in that uprising that resulted in a death, it seems to me that I would look very closely at bringing some sort of criminal charge against him. GWEN IFILL: And the extenuating circumstances that Mr. Fidell was talking about wouldn't necessarily apply? MARY CHEH: Well, they might apply, but, you know, bringing criminal case is not always about the ultimate punishment. It confirms the boundary lines that we've set as a society, and it confirms also the idea about individual responsibility. Somebody might be young, somebody might be taken up with some radical philosophy, but they may commit such acts that it's important for the society to sustain the principle that this is wrong, and leave to mitigation or maybe to a pardon. Many people convicted of treason, even Tokyo Rose, were later pardoned -- leave that to disposition -- but to make the point that this was very, very wrong. He's an intelligent person apparently, and he apparently knew what he was doing, it seems like it may be important to vindicate the principle that what he was doing was wrong and criminal. EUGENE FIDELL: There's another fact that I suggested earlier on, which is bringing a charge can also give the government some leverage to try to encourage Mr. Walker to cooperate with the authorities in going after the really big fish. GWEN IFILL: Ultimately are these decisions going to be political or legal? MARY CHEH: I think they'll be political in the first instance, and then if we go forward obviously the line prosecutors have to worry about actually making a case. GWEN IFILL: Do you agree with that? EUGENE FIDELL: I do. GWEN IFILL: Okay, then we'll leave it there. Thank you very much, you Eugene Fidell and Mary Cheh.