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Where Are The Witnesses?

CBS News Legal Consultant Andrew Cohen says the Justice Department will have a difficult time proving the charges filed against American Taliban John Walker, specifically, that he conspired with and provided support to terrorist organizations.

The government took the path of less resistance Tuesday by deciding to forego treason charges against John Walker Lindh. But it won't be a cakewalk for the feds even on the relatively lighter charges Walker now faces. That's not to say that Walker may not have committed some sort of crime(s); it's just that it may prove difficult for the government to convict him of the three specific crimes of which he now stands accused.

For instance, if it is true that Walker wasn't directly involved in, and had no prior knowledge of the prison uprising which resulted in the death of CIA agent Johnny Spann, how precisely will the government be able to prove that he was involved in a conspiracy to kill U.S. citizens in Afghanistan? Were Walker and his terrorist buddies targeting some other, as yet unidentified, American?

And precisely what sort of support and resources did Walker offer to the Taliban and/or to al-Qaida? Was it the sort and scope that the law recognizes as triggering criminal action -- after all, it's not like Walker ran guns for Osama bin Laden, right? Finally, were Walker's "transactions" with his former colleagues of a nature recognized by a federal law which generally tends to think about evil financiers giving big money to bad people?

Because the law in this area is so relatively new, and because Walker's circumstances are so unique, there will be plenty of ground-breaking judicial rulings as this case goes along. But whichever way the courts rule, the government still will have to make its case based upon evidence and since this isn't exactly a case about a paper trail, that means witnesses.

Who will be the government's witnesses? Surely not al-Qaida or Taliban fighters themselves; their sinister presence in an American courtroom is one of the main reasons why the feds didn't try to go after Walker on treason charges in the first place. It's not like a federal prosecutor can stand up in court and vouch for the honesty and reliability and credibility of the very terrorists America now is hunting down like dogs.

So who else is going to help prove what the government alleges is the case against Walker? Military officials? Perhaps. But by the very nature of what occurred there those brave folks came on scene after the fact or at least toward the very end of this pathetic story. Walker's American friends? Perhaps. But can they really testify about what went on overseas once Walker went there? Walker's overseas contacts? Again, perhaps. But it will be a tricky proposition. Theoretically, anyone who knows enough to incriminate Walker probably ought to be indicted as well as a terrorist or terrorist sympathizer. And certainly anyone in that position is going o make great fodder for good defense attorneys trying to attack credibility and reliability on the witness stand.

I just don't see a stable of witnesses the government can rely upon once they get their jury seated. And that may be especially problematic for the feds if Walker's well-publicized comments to the military folks who captured him are not permitted into evidence as a voluntary confession. We've all seen the videos and heard the audio of Walker's remarks -- from that gurney or cot in Mazer-e-Sharif: Walker pledging support for the terrorists; Walker expressing no regrets about the September attacks even though he doesn't appear to have had any role in them; Walker talking about his "heart" was taken with the type of radical Islam which wrought so much havoc on New York and Washington.

You don't need to be a lawyer to take a guess about what those images and those comments by Walker, spun by a good prosecutor, would do to a jury. Introduced into evidence, the Walker video would be monumentally significant -- a trial-changer, if you will -- and the government and the defense attorneys and the judge all know it. So look for the battle of the tape to be an early decisive battle in this trial war. Indeed, the battle over Walker's statements are likely to be the war in this case.

Prosecutors are going to argue -- indeed, already are arguing if Attorney General John Ashcroft's press conference is any indication -- that Walker's comments were made after he was read his "Miranda" rights, just like we see them read on television. So, the government's argument goes, the confession was "voluntary" under the Constitution and thus can be admitted into evidence at trial against him.

But the defense is surely going to argue that any person who watches the video can see that Walker was not exactly a picture of vim and vigor when he talked to those military authorities from that prison. He seemed drowsy and droopy and apparently was being given morphine at the time he was talking to the journalists who made the video contemporaneously with questioning by military officials. Then there are the circumstances in which Walker came into captivity; namely that he was drowned out of a basement at the prison when freezing cold water was poured in and that after a long and brutal siege. That's hardly a scenario a federal judge is likely to find voluntary.

Now, of course it is possible that the authorities questioned Walker at a different time -- away from the famous video camera -- and that it is this "other" interrogation which prosecutors want to admit into evidence. If that's the case, and Walker was in better shape than he appears to be on the tape we've all seen, then perhaps the federal courts will be more receptive to his "confession" and will allow it to go to a jury. But if there was another questioning session of Walker, and if a judge allows it in, look for Walker's attorneys then to try to get the publicized video into evidence to remnd jurors of Walker's state around that time.

Either way, it seems to me, the video is a key part of this case, which is why the Attorney General right off the bat was talking about voluntary confessions even before the indictment was made public. He's no dummy. He knows how crucial the issue is. And he also knows, it seems to me, that lowering the government's sights and our expectations about a Walker prosecution, as reasonable a step as it appears to be, doesn't guarantee success in this case.

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