Attorney Andrew Cohen analyzes legal decisions for CBS News and CBSNews.com
Federal prosecutors filed a handful of briefs Monday designed to ensure that everything John Walker Lindh said to anyone after he was captured in Afghanistan can and will be used against him at his trial, now scheduled to begin August 26. Taken together, the hundreds of pages of court papers submitted to U.S. District Judge T.S. Ellis III offer the broadest and sharpest glimpse yet of the government's response to allegations that its military and domestic law enforcement officials mistreated the so-called "American Taliban."
It's the same planet/different world scenario. Lindh's lawyers portray their client as "sleep-deprived, malnourished, hungry and in pain, with a bullet and shrapnel still lodged in his body. Mr. Lindh reasonably perceived that only by signing the (consent) form could he hope for relief from the oppressive conditions of his captivity." Prosecutors say that "Lindh chose to communicate his story to anyone and everyone who would listen — including, initially, the American media. And communicate he did — calmly, articulately, consistently, comprehensively."
The stakes could not be much higher. The government's case essentially stands or falls on Lindh's statements to his captors and then to FBI agents who questioned him last December. If these statements are "suppressed" from the trial as Lindh's lawyers have requested — if they are not allowed to be introduced to jurors and otherwise not made a part of the government's case — it is hard to see how prosecutors can meet their burden of proving guilt beyond a reasonable doubt. That's assuming, of course, that the feds don't expect to call al Qaeda operatives to the stand to vouch for Lindh's use as a terrorist.
There are three different interrogation periods that are at issue between the sides. There is the initial period when Lindh talked to U.S. Special Forces troops shortly after he was transferred into their control (and shortly after CIA Agent Johnny "Michael" Spann was killed in a prison riot near where Lindh was located). There is a subsequent five-day period when Lindh was being interrogated by other military officials. And there is a two-day period, December 9-10, when Lindh was questioned by FBI Special Agent Christopher Reimann. Because Lindh's status presented different factual circumstances during each such period, there are a variety of legal issues available to both sides.
Lindh's attorneys contend that he was near starvation and thus could not have legally consented to questioning. Government attorneys say he was fed military food like "cheese tortellini, fudge brownies, beef with mushrooms and yellow rice pilar, cheese with jalapenos, and chicken tetrazzini." Team Lindh made hay in its filings that their client's captors didn't take a bullet out of him for two weeks while he was being interrogated. Prosecutors point to medical logs that suggest that Lindh's condition was improving despite the lead in his leg.
Prosecutors also confronted head-on what is clearly their biggest problem going into the suppression hearing which begins July 15 in federal court in Alexandria, Virginia. At that week-long legal gabfest, they are going to have to convince Judge Ellis not to believe his own eyes after he sees that now infamous picture of Lindh, naked and blindfolded on a stretcher, with soldiers posing near him with vulgar epithets written on paper. It is obviously the strongest — read, the least vulnerable — part of the defense case to throw out Lindh's statements because it casts doubt on the rest of what the government says it did to Lindh.
So federal attorneys argued Monday just about the only thing they can argue — without arguing that those photos are fake. Government attorneys contend that the picture represents a unique moment during the long course of Lindh's captivity — a moment that does not accurate represent the conditions under which he lived during the time he was being questioned. Maybe Judge Ellis will buy that story. Maybe he won't. But it sure won't be boring in court when Lindh's lawyers focus upon the photo. Nor will it be boring to read the judge's explanation if he permits the use of Lindh's statements at trial in spite of the photo and what it represents.
Nearly all the papers now have been filed in advance of the big hearing. The Lindh team will refine a few points here and there in the next few weeks and the judge's law clerks will help him identify the proper legal tests and evaluate how the evidence meets those tests. Then the lawyers will stand up in court again and make the same arguments all over again. Lindh's lawyers say the conditions of his confinement preclude the feds from using what he said against him. The feds say that the awful conditions were mostly Lindh's fault, not theirs, and that the actions of Lindh's interrogators are consistent with constitutional requirements. It ought to be one heck of a week.
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