The Defense Takes The Offensive

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

What do you think First Amendment absolutists are thinking these days now that Lindh's lawyers claim he had a constitutional right to "associate" with his Taliban buddies?

By the same token, what do you suppose U.S. foot soldiers are muttering to themselves as they slog their way through the tunnels of Afghanistan now that they know the Lindh defense team is arguing that their client, the so-called American Taliban, should be protected from prosecution by a doctrine known as "combat immunity."

And how about federal appeals judge Richard Posner, one of the most famous and prolific judges on the bench? Lindh's lawyers cite him at length for their proposition that a "crime of violence" has a narrow definition into which Lindh's conduct does not fall.

In an extraordinary flurry of creativity, and in an effort to put the feds on the legal defensive, Lindh's attorneys have filed four substantive motions this week (and the week isn't over) asking U.S. District Judge T. S. Ellis III to dismiss all of the charges against their client. The court papers are well-written, about as concise as legal briefs can be, and government attorneys had better take them seriously because they raise very important questions about the way the facts of the case fit with the law. If Judge Ellis buys into any single one of them, the prosecution's case against Lindh likely will look very different at trial.

On Monday, Lindh's lawyers explored the contours of a few key federal regulations that are aimed at freezing the assets of foreign nationals or blocking certain international transactions. The defense contends that the regulations should not be applied to Lindh — and the charges based upon which the regulations should be dismissed before trial — because Lindh didn't provide the sort of financial support and services contemplated by Congress when it authorized the regulations. One way or another, Judge Ellis' ruling on this dispute will shape the scope of the regulations for years to come. Either it will be off the table in future terror-related prosecutions or it will be an important tool for the feds to continue to use.

The same is true of an issue raised Wednesday by Lindh's lawyers. They contend that the final charge against Lindh, using a weapon during a crime of violence, cannot go to a jury since there was no predicate "crime of violence" even if all the allegations against Lindh are true. Unlike real violent crimes, the defense brief goes, "the intrinsic nature of providing material support, resources, or services to a designated terrorist organization does not involve a substantial risk that physical force may be used in 'most, if not all' instances of the offense in the course of committing the offense." That may or may not be the case. But again, a definitive decision by Judge Ellis will go a long way toward generating clarity in what has to be considered the burgeoning new area of "terror law."

Then there's the "combat immunity" defense, one of the more creative and brazen ones you are likely to ever find in a case as high-profile as this one is.

Lindh's lawyers contend that their client cannot be prosecuted as a terrorist or as a war criminal since international law precludes "foot soldiers" from being so prosecuted. The other part of this theory, according to the defense, holds that international law must be recognized in federal courts when there is no clear Congressional directive to the contrary. This is terra incognita in the world of federal criminal law, especially as it relates to terrorism. And Judge Ellis is the lucky fellow who will get to make the first ruling defining the category into which Lindh falls.

There's also the First Amendment defense, also raised Wednesday by defense attorneys. They contend that Lindh had a First Amendment right to "associate with unpopular and disfavored groups" and that the government's prosecution of him for providing "material support" to one of those groups is an unconstitutional exercise of its power.

Lindh's lawyers also argue that the "material support" statute upon which the government relies is illegally vague and overbroad since it doesn't adequately define "personnel" and "services" in its text. This is one of the arguments many legal experts expected to be raised in the Lindh case and, now that it has been, the government must figure out a way to defend the statute without watering it down so much that it is rendered inoperative.

Finally, there's the gun argument. Remember the hullabaloo last week when the Justice Department changed course completely and came out in support of broader Second Amendment rights for private citizens? Well, Lindh's lawyers threw the feds' now-famous footnote back in their faces Wednesday by arguing that any prosecution of Lindh for carrying a weapon while legally acting as a Taliban soldier would violate his gun rights as recognized by federal officials. The idea is that the Second Amendment right the government now says it recognizes ought to trump the federal statute that generates a separate crime of carrying a weapon while committing a crime of violence. It should be fascinating to read what federal prosecutors write in response to the defense argument — and whether the government actually backs off a bit in declaring gun rights so paramount.

The feds now are busily writing their response briefs and I suspect they see the facts and the law in a very different vein. They may in the end prevail on these issues in part because Judge Ellis may decide he'd rather have the jury make the final call on these charges.

But if the feds do not prevail, and if one or more charges are dropped against Lindh, the early battles in this legal war will have gone to the defense, and that won't bode well for the Justice Department as it moves closer to trial.

By Andrew Cohen