Lindh Lawyers To Square Off

CBSNews.com Legal Analyst Andrew Cohen previews the pre-trial discovery hearing of so-called "American Taliban" John Walker Lindh.

And the Justice Department even may convince U.S. District Judge T.S. Ellis III to deny a request by Lindh for more specific information about the charges against him. But sooner or later, government attorneys are going to have to put their cards on the table and, so far, there's little indication that they are holding many aces.

So far, I have been underwhelmed by the depth of the allegations against Lindh.

Neither the initial complaint against him, the indictment handed up in January, the arguments made by prosecutors during the fight over Lindh's bail in February, nor the latest court papers filed by the Justice Department last Friday are rife with specific examples of clear criminal conduct on the part of Lindh.

Actually, what is most striking about the case as it gears up in earnest is not what the Justice Department says about Lindh but what the feds do not say about him.

There are allegations of guilt by association and certainly a focus on the many bad choices Lindh made for himself over the past few years but there don't appear to be many smoking guns. And even at that, prosecutors concede that the bulk of their case is based upon Lindh's own statements, made to military officials just after he was captured.

Even if these statements make it into evidence - by no means a sure thing - they were offered by a sick, wounded man on morphine who had barely survived a siege in one of the worst places on earth.

If this is the best the feds can do against the so-called American Taliban, it may not be enough, even with all the homefield advantages prosecutors are likely to enjoy in federal court in Virginia against such an unpopular defendant.

For example, there are no factual allegations that Lindh fired a weapon on behalf of the Taliban or Al Qaeda, never mind firing a shot in anger at US troops.

The government so far contends only that Lindh "was issued an AKM rifle" and that he "served with his unit, opposing Northern Alliance troops." There are no factual allegations that Lindh provided Al Qaeda with support or assistance beyond the time and energy he spent training in its terror camps and I suspect the question of whether such training constitutes "material" assistance to terrorists is an open question under federal law.

And, perhaps most significantly, there are no charges that Lindh participated in or knew in advance about the prison riot which resulted in the death of CIA employee Johnny Michael Spann.

On that last point, the complaint states only that Walker "was moved to a lawn where others whose interrogations had been completed had also been moved" when he "heard shots and screaming from the basement" at the prison in Mazar-e-Sharif.

The indictment, which legally supersedes the complaint, states only that "after being wounded, Lindh retreated with other detainees to a basement area" of the prison compound. Meanwhile, in a brief filed last week by the government, the feds state that Lindh was "imprisoned at Qala-i Jangi when fellow Taliban prisoners attacked and killed CIA employee Johnny Micheal Spann and staged a bloody uprising, which took several days to suppress."

The complaint and the indictment and the brief probably are compatible. But they hardly portray Lindh as being involved in any sort of conspiracy which may have led to Spann's demise.

There is also the allegation, in the indictment, that Lindh was told in June 2001 that "Bin Laden had sent forth some fifty people to carry out twenty suicide terrorist operations against the United States and Israel." But in their brief last week, federal prosecutors told Judge Ellis that "members of terrorist organizations such as Al Qaeda frequently do not identify specific, individualized victims of their plot, and instead know only that a broad category of persons -- such as U.S. citizens -- is targeted."

I'm not sure that any advance knowledge Lindh may have had generally about unspecific and unidentified future terror attacks against unidentified and unspecified victims, without more, constitutes a crime, or at least any of the crimes with which Lindh has been charged by the government.

Sometimes the aims of a conspiracy can be so vague and attenuated that a conspiracy charge cannot be pinned on some bottom-of-the-totem-pole lackey like Lindh.

The government says it doesn't need to show all of its cards so far in advance of trial and, generally speaking, that's right. But the feds also say that Lindh's lawyers will "assuredly have a fair opportunity to meet the evidence against him" since "all discovery information... will be furnished a full week before jury selection begins."

I'm not so sure that's entirely compatible with federal law. So Lindh's lawyers are right to argue now, five months before trial, that in order "to prepare to defend against (the conspiracy) charge at trial, Lindh needs to know what U.S. nationals the government alleges he conspired to kill, when and how he is alleged to have agreed to kill U.S. nationals, with whom he is alleged to have agreed to kill those U.S nationals and what actions he is alleged to have taken to carry out the agreement to kill U.S. nationals."

With all the other built-in advantages the government has going for it in this case - the pro-government jury pool in Virginia, public sentiment in general, the images and words from Lindh himself praising the Taliban - you would think at a minimum the feds would simply tell Lindh and his lawyers what the defendant is truly up against; what the factual bases are for the serious charges against him.

Instead, what the feds are doing is arguing that Lindh "knows what he said" to military authorities after he was captured and thus shouldn't be permitted to ask the judge for more information from the government.

That doesn't make much sense, legally or otherwise, and I suspect Judge Ellis Monday is going to ask prosecutors why in the world Team Lindh would be spending all this time and money trying to get the feds to be more specific about the allegations if the allegations already were known to the defense.

It's a good question. And it is one of many the feds would be better off answering sooner rather than later; now rather than at trial.