Photos Complicate Lindh Prosecution

CBSNews.com Legal Analyst Andrew Cohen examines the difficuties government prosecutors may face because of photos that suggest John Walker Lindh was mistreated while a military prisoner.

As CBS News' David Martin first reported, the government has recently discovered photographs that show U.S. Special Forces soldiers posing with a blindfolded and handcuffed Lindh. On the front of the blindfold, Martin reports, is a humiliating obscenity.

Now, we've known for a while about the way Lindh was bound and shackled naked to a stretcher and kept in a metal storage container. For just as long, actually, Lindh's lawyers have maintained that no person kept in such conditions could reasonably be expected to "voluntarily" talk with his captors given the contours of the 5th Amendment's right against self-incrimination.

That's the central issue in the case since many of the government's allegations against Lindh are based upon Lindh's own statements after capture.

But if the blindfold itself is old news, the obscenity on the blindfold is new. And so is the implication that American troops were interested in treating Lindh like a prized deer instead of a defendant. No civilian law enforcement official would be caught dead taking such pictures, even if a few were inclined to think of their captives in this fashion. It's just not the sort of thing they teach police in police school. What they teach cops, instead, from FBI recruits to candidates for local sheriff deputy, is that even the most innocuous-seeming oddities which occur during arrest and detention can later come back to haunt the government in the form of excluded evidence at trial.

If you are wondering what effect these photos may have on Lindh's pending case, imagine what such photos would do to your run-of-the-mill criminal prosecution. Imagine, for example, what a judge or jury would think of a photo of a group of local cops treating a local suspect in such a fashion in an alley or at a police station. Think Rodney King without the violence. Or Abner Louima without the sodomy. Think of those old photos of lynch mobs posing with their prey (guilty or not). Think of evidence excluded and cases dismissed before trial.

The reason that civilian police forces are trained absolutely not to do these sorts of things - the exceptions proving the rule - is precisely because they can have such a counterproductive effect on the chances of conviction once the criminal justice system cranks up.

In this case, to the extent they suggest a level of hostility and disrespect toward Lindh, the photos will reinforce the notion that Lindh's statements to military officials were not constitutionally valid and thus should be excluded from his trial. If the troops were willing to humiliate Lindh in this fashion, the defendant's lawyers will argue, what else were they willing to do that they didn't happen to photograph?

The new photographs, combined with what we already know about the way Lindh was treated, will go a long way toward convincing U.S. District Judge Joseph Ellis III that Lindh's crucial statements were offered only after unacceptable physical and emotional intimidation.

If Judge Ellis throws out Lindh's statements, the feds will have a very difficult time otherwise proving that Lindh materially aided terrorists and conspired to kill Americans. And if Lindh is therefore acquitted of the most serious charges against him, the Bush administration will have lost perhaps its best opportunity to make the legal and political and societal point it very much wants to make through the prosecution of this case - bad things will happen to Americans who side with America's enemies.

I don't necessarily blame the troops for posing with Lindh in this fashion, although it would have been nice had at least one of these heroes stopped his buddies from doing something so unseemly. They should have known better, but the reality is that these soldiers operate under very different rules from the ones under which civilian law enforcement officials operate. They operate in a world without the need for constitutional niceties, where there are "enemies," not "defendants." We haven't asked our soldiers very often in our history to act as cops, too, and certainly not as cops on the lookout for Americans. Patton and Miranda don't exactly mix.

And you can see the differences between the world of law enforcement and the world of warfare even in the way those troops otherwise handled Lindh. Timothy McVeigh, who as near as I can tell killed precisely 168 more Americans than did Lindh, was guarded initially by portly middle-aged portly men - civilian law enforcement officials all - who kept him in handcuffs and sometimes leg-cuffs but never a blindfold.

Lindh, on the other hand, who was wounded and sick and hungry and dazed, was guarded by elite, young troops who still thought it necessary to handcuff him, blindfold him and surround him by barbed wire when he wasn't kept in that large metal box.

"Our main concern of guarding him was possibly being attacked so they could rescue him", one of Lindh's initial guards, Marine Lance Corporal Charles Perkins, told a local paper in February. "Meanwhile, we were just making sure he didn't try to escape."

I don't know who precisely would have been interested in - or capable of - rescuing Lindh, and I don't know who thought the skinny, sick Lindh was capable of overpowering the heavily armed young men surrounding him. But I'm glad our fighting soldiers are so careful about the way they guard their captives. Right or wrong, however, a reasonable and necessary excess of caution to the military might look an awful lot like an unreasonable and unnecessary excess of coercion to a federal judge.

Don't blame federal prosecutors for this, either. I'm guessing that the Justice Department didn't know all the details of Lindh's captivity when the Defense Department handed its catch over to civilian authorities. You know how government fiefdoms are. And I'm also guessing that Attorney General John Ashcroft and his colleagues aren't exactly delighted that their brothers in arms have made things so much more difficult to gain a conviction against Lindh.

But now government attorneys have to make do with what they have and what they have is a big, big problem they'll have to overcome just to make it to trial.

These new photos reaffirm the notion that the Lindh case represents an intersection between military protocol and constitutional due process. So, among many other things, the Lindh case will stand as a test of how the federal courts view that intersection and how far they want to cross it in one direction or another. Theoretically, the rules which ought to prevail in federal court are the rules in the Constitution and not the rules of engagement. We'll see.