John Walker Lindh Faces Charges

GWEN IFILL:

[John] Walker is the first American, and only the second individual, charged in connection with the September 11 attacks and ensuing war.

For more on the John Walker case, we are joined by Andrew McBride, a former assistant U.S. Attorney for the Eastern District of Virginia, where Walker will be tried; and David Cole, a professor at Georgetown University Law Center, and an attorney for the Center for Constitutional Rights.

Mr. McBride, tell us about these charges. Why these charges against this man?

ANDREW McBRIDE:

Well, I think the Attorney General laid out that the charge of treason carries with it some particularly high evidentiary burdens, and I also think at this time that they have been unable to link this defendant to any particular death and therefore charging conspiracy to murder American citizens abroad namely military personnel engaged in act of combat against al-Qaida is the way to go at this point.

Now, the affidavit discusses the interview that CIA Agent Johnny Spann had with the defendant and then discusses the fact that the revolt at the Mazare Sharif prison broke out shortly thereafter, and I'm sure prosecutors are looking to make some connection there, if there is one, that Mr. Walker may have been involved in setting up Mr. Spann who evidently interrogated him fairly rigorously about his United States citizenship.

GWEN IFILL:

But absent that direct proof of his involvement in the death of Johnny Spann, you're saying that this… These charges reflect the notion that the American government doesn't have any proof that he actually directly had something to do with the death of an American citizen?

ANDREW McBRIDE:

That's correct, that he joined a conspiracy whose object was to kill American citizens, but if they were able to add the charge that he specifically knowingly caused the death of an American citizen, that would make the offense death eligible.

GWEN IFILL:

Prefessor David Cole, what do you make of the charges against John Walker?

DAVID COLE:

Well, I think the government made a choice to go for a charge that it thought it could win based on the confession which it obtained. That's all that the confession supports at this point. They've said that they're going to bring more charges if further evidence is developed.

But at this point they're essentially resting on this confession. I think everything in the case will turn on whether or not this is, in fact, a valid confession.

GWEN IFILL:

Do you think that what he is alleged to have done should have constituted a charge of treason?

DAVID COLE:

Well, no, what he's alleged to have done… At this point I'm not sure that it should. All that he's alleged to have done is what they have from the confession. And question is whether they'll develop further evidence.

If they don't, then the only question is I think the principal question in the case will be, is this, in fact, a reliable confession? Because if it's a reliable confession, he doesn't have much of a defense. But there's I think real serious questions about whether or not it's a reliable confession.

GWEN IFILL:

How do we know whether it's a reliable confession?

DAVID COLE:

I mean, what John Ashcroft says is we gave him his Miranda rights. He waived the rights. He didn't want to talk to a lawyer. He talked to us voluntarily. Here's a person who refused to cooperate initially according to Ashcroft, suddenly turns around and just voluntarily waives his rights and signs away all of his rights without ever talking to a lawyer.

Was it truly a voluntary, knowing and intelligent waiver of those rights particularly in these conditions? When you're picked up in the field of battle, you're held in a military compound, you know, can we really say that John Walker made a voluntary and intelligent decision to waive his rights? If not, then the confession is not admissible. If so….

ANDREW McBRIDE:

I disagree with that. I mean I think the affidavit in support of the criminal complaint says that he was given Miranda, he signed a written Miranda waiver. He orally waived Miranda. He also said he acknowledged that he had had medical treatment and he had been treated fairly in military custody by the United States, that he's not been abused in any way.

Secondly… So now you have two FBI agents who interviewed him said he waived his rights, a physical document that can be looked at and determined whether that's his handwriting on the waiver, his own admission that he's been treated well in the military custody.

Finally statements made to CNN that have been broadcast on the air outside of the presence of law enforcement officers that corroborate the things that have been said to the law enforcement officers themselves so….

GWEN IFILL:

But why not give an American citizen access to an attorney, his attorney has been here in the United States apparently trying to get access to John Walker just to be on the safe side?

ANDREW McBRIDE:

Well, nobody's entitled to an attorney until they've been charged with a crime. There's no Sixth Amendment right that attaches to an individual until in some cases until an indictment has been filed against them. But certainly now the Sixth Amendment has attached with the criminal information filed.

But in a military setting overseas I think the United States is within its rights to say as long as he's in military custody that a civilian attorney should not have access to him. Now he's been indicted. I think it's pretty clear that U.S. law enforcement officers will not speak to him until he reaches Virginia and is able to speak with his attorney.

GWEN IFILL:

Did you want to respond to that?

DAVID COLE:

Well, he is entitled to an attorney if he's being interrogated in custody. That's why they read him his Miranda warnings. At that point he was entitled to an attorney. They claimed that he voluntarily waived that right. If he did so, then the confession is admissible. What I'm suggesting is that that's going to be A… It seems to me that would be a central of the focus. If that's not a legitimate concern, the validity of the confession, then you've essentially got… The defense counsel has simply got to try to humanize him in the hopes that the sentence that he receives will not be the maximum.

GWEN IFILL:

Why do these charges, in your opinion, fall short of a death penalty… something that is punishable by the death penalty if these charges are so serious, if what he did is so serious?

ANDREW McBRIDE:

I think we have to be careful. This is a criminal complaint. In our criminal system, Mr. Walker has the right to be indicted by a grand jury. At the same time the United States will be using that grand jury to gather more evidence. This is in a sense a placeholder to begin the process.

And I think if the United States develops evidence sufficient to charge treason or sufficient to charge that Mr. Walker caused or directly set in motion events that actually caused the death of an identifiable American citizen like CIA Agent Johnny Spann or a U.S. soldier, then they would go ahead and charge the death penalty.

But at this point although there's some very shocking details in this affidavit, there's nothing that indicates that Mr. Walker, having adhered to al-Qaida directly caused the death of an American citizen.

GWEN IFILL:

Well, that's an interesting point. If you're fighting against the Northern Alliance– and he admits apparently according to this affidavit that he joined al-Qaida to fight against the Northern Alliance– and the Northern Alliance is an ally of the United States does that automatically mean that he was part of a conspiracy to fight against the United States?

DAVID COLE:

Well, I think that will be one of the arguments in the case, that he was essentially fighting against the Northern Alliance and the United States came in and joined up with the people that he was fighting against. Does that mean that he has, in fact, engaged actively in a conspiracy to attack Americans?

GWEN IFILL:

What do you think?

DAVID COLE:

I think it's an open question. I don't think… I think it's an open question, but… And it will be one about which there will be some argument. I think at the end of the day my guess is that if these facts as alleged are true that he will be found guilty of conspiring to kill Americans. He knew that Americans were fighting with the Northern Alliance. He knows that you're shooting against people who include Americans. That's going to be probably sufficient.

ANDREW McBRIDE:

Even prior to that, Gwen, on the conspiracy charge, in June this affidavit alleges that in June of 2001 he was in training camps in Afghanistan where he gained the knowledge through al-Qaida members that there were terrorist activities going on in the United States targeted against the United States.

Right there the prosecutor could argue his adherence to the conspiracy was complete — even before taking up arms against the Northern Alliance and the United States troops that when he was in those training camps and he knowingly participated in training knowing that these sleeper operations were going on in the United States, he adhered himself to that conspiracy.

GWEN IFILL:

That's interesting. The Attorney General talked about him choosing these different crossroads, choosing to align himself against the United States. How important is it that his intent was to hurt Americans, not just to fight on behalf of the Taliban?

ANDREW McBRIDE:

I think that's going to be key. What was mentioned earlier is there's going to be a battle here about whether this was a cult that overcame the will of John Walker or whether John Walker consciously chose at each stage in his development as an al-Qaida member to escalate his involvement.

And the affidavit and the Attorney General's comments clearly try and make the case. It seems to be a strong one, that at every step Mr. Walker said I want in for more, I want in for more. Even after September 11 when he knew that the United States had been attacked in an unprovoked manner and U.S. civilians killed he again asked to be part of the operations.

GWEN IFILL:

How important is intent, Professor Cole?

DAVID COLE:

Well, intent is very important. I think it's important at this point to note that all we have are the government's allegations. He hasn't retained a lawyer or a lawyer that can actually help him. We haven't heard his side of the story.

So we don't know what the ultimate facts are. But, yeah, his intent is… I mean, I think the question in people's minds is how did a young American man end up in this place and I'm sure one thing a defense attorney might think is, can we make a showing that, you know, he was sort of caught up in the cult that led him there.

GWEN IFILL:

And another question is, how does one get a fair trial when one is accused of betraying one's country in such a high-profile way?

DAVID COLE:

Well, that's a very tough question. It's an even tougher question for someone like Zacharias Moussaoui, who is not a U.S. citizen to begin with. At least because Mr. Walker is a U.S. citizen there will be some sympathy.

I think there's far less sympathy for the non-citizens and yet we have a right to try people who are alleged to have committed these kinds of crimes against us. We have to simply try through the mechanisms we have of voir dire to ensure that we get a jury that can keep an open mind about it.

ANDREW McBRIDE:

I agree with that. I think the jury selection in the Moussaoui case is going to be extremely difficult where you're talking about an individual who is according to the government's evidence the 20th hijacker. And you're talking about trying him in Virginia where one of the planes landed at the Pentagon and picking jurors who literally may have seen the smoke.

So I think it's going to be very difficult. Mr. Walker is charged with crimes that by and large occurred outside the United States. And so I think he may be in a different situation. If I were defending Mr. Walker, I think the avenue would be a cult-type defense, that Mr. Walker's will was overborne by these people and that some of his involvement with al-Qaida was really not of his own mind because I think these statements by Mr. Walker will come into evidence in this case and in the Eastern District of Virginia.

Let's face it, on the other side these are only allegations but this is also only a preview of what the government has. It may indeed have more evidence.

GWEN IFILL:

Andrew McBride and David Cole, thank you very much for joining us.