Litigating The War On Terror

Andrew Cohen analyzes key cases and rulings for CBSNews.com and CBS News.

If prosecutors win these substantive battles, the case will proceed pretty much as it has since it started, that is, until next month's crucial suppression hearing. But if the defense wins one more of its motions, the government's ammunition against the so-called "American Taliban" will be weakened. And if the defense wins a bunch of its motions, prosecutors may find their case gutted before U.S. District Judge T.S. Ellis III even begins to look at whether to allow Lindh's post-capture statements into evidence.

Judge Ellis would be well advised to bring with him to the bench a score sheet of sorts for Monday's session. Team Lindh has plastered his desk with a variety of creative, novel arguments based in large part upon the government's creative, novel use of federal law to prosecute Lindh. The aggressiveness with which the feds went after Lindh in their indictment has been matched by the aggressiveness with which Lindh's lawyers have now attempted to get that indictment tossed. Neither side has held back. Neither side pulled a punch.

Looking for a constitutional dimension to this particular fight? It will come during the hearing, when federal lawyers and defense counsel spar over the issue of "combat immunity." Lindh's lawyers argue that their client is immune from prosecution since all he arguably was doing was fighting with the Taliban, the "Army of Afghanistan."

Prosecutors argue that this defense isn't available to Lindh since President Bush declared long ago that the Taliban "are unlawful combatants" whose soldiers don't deserve the status that soldiers of a "lawful armed force" would deserve under federal law. And just in case that isn't good enough for the judge, prosecutors contend that under Article II of the Constitution the president gets to make that call without much judicial review.

The Bill of Rights also will be implicated during the hearing. Lindh's lawyers claim that the federal statute that makes it a crime to provide "material support" to terrorists violates their client's first amendment right to associate. Prosecutors counter that "there is no first amendment right to become an armed combatant for Al Qaeda and the Taliban." The judge will have to decide whether the language of the statute is so broad that it incorporates protected associative conduct as well as unprotected criminal conduct. And Judge Ellis probably will chime in on precisely what "material" means when it comes to "material support."

The second amendment, too, may pop up briefly during Monday's hearing since Lindh's lawyers have (if only half-seriously) relied upon it to bolster their argument that since Lindh had a broad right to carry a gun he cannot necessarily be prosecuted for carrying a weapon during a "crime of violence." Getting the joke, prosecutors respond by arguing that "whatever the defendant's second amendment rights may be, they do not extend to carrying weapons in support of a terrorist organization bent on the violent destruction of the United States." I suspect Judge Ellis won't be spending much time on this doozy.

There will be plenty of intriguing argument over novel statutory claims, too. Lindh's attorneys claim that he cannot be prosecuted for "contributing or supplying services to" Al Qaeda and the Taliban under the International Economic Emergency Powers Act and its subsequent regulations because the regulations as applied to Lindh go beyond the authority given by Congress to the Department of Treasury. Prosecutors say there is plenty of leeway in the language of the statute that gives the executive branch the power to apply its provisions to Lindh's conduct. The judge will have to determine whether the statute can cover the types of "services" the feds contend Lindh provided to the terrorists.

Then there's the selective prosecution claim made by Lindh's attorneys. They contend that the feds are discriminatorily picking on Lindh for "religious and spiritual" reasons while ignoring others who are similarly situated. Which others? Well, the University of Nebraska for one. Team Lindh argues that the University of Nebraska provided the same sort of support to the Taliban that Lindh did. Also, the defense contends that two individuals named Helms and Mohahid had "an economic relationship with the Taliban" that warranted prosecution.

The feds say, of course, that this is nonsense. They say the allegations against Lindh put him into a category all by himself, that of "an American who engaged in combat and terrorist training for and with the Taliban and Al Qaeda, and then bore arms on the front lines of battle against their enemies, including fellow Americans." The judge will have to decide not only whether Lindh's situation is factually different from the rest — it clearly is — but whether the government had bad motives for moving forward in the case.

We've known for months now, ever since the government started reacting to the terror attacks of September 11th, that we would be living through fascinating legal times. And it has become increasingly clear — as new facts meet new laws or old laws are applied to new facts — that lawyers and judges in the legal war on terror will be cruising in large part into uncharted waters, void of clear legal precedent and authority.

If ever modern jurists wanted to write on a tabula rasa of the law, this is their chance. And that chance starts in earnest Monday with a hearing that, issue for issue, probably involves more new arguments, applications and concepts than any hearing any federal judge has ever heard before.