Lindh: In His Own Words

In his commentary, CBSNews.com Legal Analyst Andrew Cohen examines the issues at stake at a federal court hearing which begins Monday in Alexandria, Va., on whether incriminating statements made by so-called "American Taliban" John Walker Lindh can be used against him at his trial next month.

If prosecutors "win" the big hearing - if Lindh's various statements made while he was in military custody last year can be read and shown to jurors at his upcoming trial - the feds will have a decent chance of convicting the so-called American Taliban on virtually all of the conspiracy and terror-aid charges against him. But if the defense wins - if the judge suppresses Lindh's statements on constitutional grounds - there won't be much left at all to the government's case and prosecutors may have to cut a quick and relatively harmless plea deal.

Whichever side wins the week likely wins the case.

Most of this pre-trial hullabaloo could have been avoided had Lindh's military guards treated him less like a prisoner of war (and possible terrorist) and more like a possible future criminal defendant. It also could have been avoided had those soldiers been better trained and prepared to handle a suspect like Lindh who, after the first few days of his capture, clearly was floating somewhere between military and civilian jurisdictions. In some ways, the disconnect between what civilian law requires out of its law enforcement officials and what military law permits its guards to do to prisoners all but guaranteed that a mess like this would come out of this amorphous war on terror.

No police officer here at home ever could do what U.S. troops did to Lindh overseas and get away with it in a court of law. You only need to think of Rodney King, Abner Louima or the young man in the news these days because he was worked over by the police in Inglewood, California to know how the criminal justice system reacts when it perceives its uniformed officers to be acting out of anger instead of professionalism. Lindh's treatment was over the top by domestic standards precisely because the U.S. soldiers who guarded him were furious at him and all the anti-Americanism he represented to them fighting the good fight all those miles away from home.

So now U.S. District Judge T.S. Ellis III will have to decide whether the circumstances of Lindh's confinement - the fact that he was captured on a battlefield after fighting for America's enemy - make enough of a factual and legal difference to change a constitutional dynamic that's been around for over a generation. The promise and protections of the Miranda warning - the right to remain silent, the right to an attorney - are supposed to apply to the military. This hearing will determine if they really do or if there are circumstances - like wartime - when they do not.

Lindh's lawyers are the ones asking for help so they'll argue first. They contend that Lindh was improperly questioned by military officials without waiving his Fifth Amendment rights and then was coerced into waiving those rights shortly before talking to the FBI. They say that Lindh's physical and emotional condition at the time - and the actions of his captors - precluded him from being able either to understand the nature of the questioning or to voluntarily or knowingly agree to it. And they point to a fairly disturbing set of facts to support their claims.

For the ten days or so after he was turned over to U.S. Special Forces, from December 1st to December 10th, Lindh was kept bound and blindfolded, with a bullet left embedded in his thigh. Already exhausted and otherwise wounded from his miserable existence with the Taliban, Lindh was kept incommunicado from his parents and the attorney they had hired on his behalf. Even when he asked about a lawyer he was told none was available. A few days before he was interviewed by the FBI, some of the soldiers guarding him threatened to kill him and then wrote "s---head" on his blindfold before posing for pictures. U.S. District Judge T.S. Ellis III will see at least one of those pictures before resolving the dispute.

Prosecutors dispute many of those facts offered by the Lindh defense. They also make the contextual argument. They contend that most of Lindh's sorry state is directly and solely attribute to his own awful choices - like joining up to fight with the Taliban in the first place and then sticking around even after September 11th. They argue that guarding suspected terrorists "ain't beanbag" and that the onerous security placed upon Lindh was necessary to ensure that he didn't pull something dangerous.

They contend that he ate and was housed as well as the soldiers guarding him in that primitive area of the world and that his physical condition didn't preclude him from making rational, informed choices about whom he wanted to talk to. Prosecutors also say that Lindh's parents had no right to hire a lawyer on behalf of their son and that none of the interviews conducted by military personnel generated any information they intend to use at trial. The government makes no apologies for the treatment its soldiers gave to Lindh, although I suspect federal prosecutors won't be taking credit for photos of the defendant's captors posing with their captive.

Suppression motions like the ones made by Lindh's lawyers rarely succeed. Judges usually decide to allow the information to get to jurors at trial. Legal precedent, and the notion that there is little else to the government's case against Lindh but Lindh's own statements, probably tips the balance here in favor of the government. But it's a close call. And it wouldn't shock me if Judge Ellis threw out at least part of the evidence the government so desperately wants to introduce at trial.

By Andrew Cohen