U.S. District T.S. Ellis III adopted a government proposal for the defense to submit written questions for the military detainees now held at Guantanamo Bay, Cuba. Military interrogators will conduct the interviews and send a videotape to the defense team.
Ellis said he would closely monitor the government questioning on the defense's behalf and decide whether any questions were improperly eliminated from their list.
American-born Lindh, 21, is accused in a U.S. indictment of conspiring to murder U.S. nationals, providing services to al Qaeda and the Taliban and using firearms during crimes of violence. Jury selection for his trial is scheduled to begin Aug. 26.
Lindh's attorneys sought face-to-face interviews with the prisoners. The government said such interviews would compromise national security and that it needed time to screen the questions and answers.
"I find the government's assertion of claims of national defense and national security to be valid," Ellis said.
He added, however, that "if necessary, I will reassess the balance I have struck today" if the government improperly eliminates questions the defense needs to present its case.
Lindh's lawyers believe some of the al Qaeda and Taliban prisoners held in Cuba can confirm Lindh's contentions that he never contemplated fighting Americans in Afghanistan, that he received conventional military — not terrorism — training and that he had no role in planning a prison uprising in Afghanistan that led to the murder of a CIA agent.
CBSNews.com Legal Analyst Andrew Cohen says this is another ruling that probably would have gone the other way before September 11. In the wake of the terror attacks, however, few judges are going to want to second-guess the government when it comes to the intersection of the law and the military. The flip side of that is that the government can't cry wolf and it can't abuse the benefit of the doubt it's getting in this or any other terror-related case.
Lindh attorney George Harris said the defense team would submit questions for 20 detainees in Cuba. The team also wants to interview Yaser Esam Hamdi, who is believed to be an American citizen and was moved from Cuba to the Norfolk Naval Station jail in Virginia.
Ellis said he may allow a face-to-face interview with Hamdi, and asked the government to file pleadings if it had any objections.
The Lindh defense team's pretrial strategy is to have charges against him thrown out and suppress statements he made to government interrogators. The system Ellis approved for interviewing the prisoners applies only to the pretrial motions and has no effect on any future requests by the defense to have the detainees testify at trial. Ellis said that question would be handled later.
Under the system approved by the judge, Lindh's lawyers will submit written questions to government attorneys representing the Justice Department and the Department of Defense, who will be separate from the prosecution team.
The questions will be woven into normal interrogation of the prisoners and defense lawyers will receive a summary of the answers. Lindh's lawyers also will get a chance to submit follow-up written questions and eventually will receive a videotape of the interview.
Ellis emphasized that if there is a dispute over any of the questions, "I'm going to be the arbiter."