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John Walker Lindh: Poised for a Legal Battle Royal

Sunday, 10 February 2002 12:00 AM

In the early going, John Walker Lindh and his U.S. captors may have been in a legal quandary, tangled in a warp between the international law of war, the Uniform Code of Military Justice, and federal criminal statutes, but the success or failure of the prosecution may well rest on whether the judge decides that his interrogations pass muster with the Miranda decision that a crime suspect in custodial interrogation be advised of the right to remain silent and have access to an attorney, if requested.

One key issue: Walker’s mental state and physical condition at the time of the questioning and at the time of his waiver. The defense has maintained that Walker had been under severe duress, had been wounded in the thigh, and, after coming under American control, had been under a regime of painkillers and deprived of adequate nutrition by his rescuers.

In court documents, Lindh’s defense team alleged that from Nov. 25 to Dec. 1, Lindh remained in the basement of the prison with "almost no food and very little drinking water.”

Contributing to his mental duress, say the documents, he and other prisoners had to dodge grenades that their soldier-jailors threw down ventilation ducts. The jailors also fired rockets through a ventilation shaft and attempted to flush Lindh and the other prisoners out by flooding the basement with water.

At one point, say the documents, the soldier-jailors "poured oil or diesel fuel down a duct into the basement [and] lit the fuel.”

In responsive pleadings, however, the government rebutted the defense: "Defense counsel would have this Court believe that the defendant was essentially deprived of food and medicine prior to his FBI interview. That is not true. We proffer to this Court that after the uprising was suppressed and Lindh was recognized as an American and taken into the custody of the United States military, he was given medical treatment, food and water.

"He was examined and treated regularly by a United States military physician, his wounds were dressed and changed repeatedly, he was administered antibiotics as well as painkillers, and he was even given a tetanus shot.

"Moreover, contrary to the defendant’s claim that he was given minimal food, military records for December 5, 2001 indicate that "[p]atient has been eating three MREs [Meals Ready to Eat] per day with plenty of water” and that his "[s]trength continues to improve.”

However, outside the Alexandria federal courthouse after the preliminary hearing, Frank Lindh, the defendant’s father, told reporters, "We’re very grateful to see that John is in very good physical condition. We were troubled that he didn’t have medical treatment until he was transferred to the Navy ship.”

The government is expected to argue that the initial Walker interviews were conducted on the battlefield for tactical intelligence and didn’t require reading him his rights under Miranda.

Eventually two FBI agents were sent to Afghanistan to advise Walker of his rights, but as Brosnahan told NEWSWEEK recently, "They’ve been interrogating him for nine days, which is a long time to go without allowing him to have counsel.”

At Walker’s preliminary hearing in January -- out of the legal procedural blue --James Brosnahan, his lawyer, announced to the presiding magistrate, "My client went 54 days, your honor, without a lawyer. He asked for a lawyer on the first or second or third day.”

James J. Brosnahan told reporters that his first demands to see his client had gone unanswered. Brosnahan, a San Francisco trial lawyer who aided in the prosecution of the Iran-contra case, has maintained that the Defense Department’s general counsel, William J. Haynes II, at first ignored his written requests: "I asked that they not interrogate him until he’s had a chance to talk to his attorney.”

Walker has been indicted on charges including: conspiracy to murder U.S. nationals, conspiracy to provide material support and resources to foreign terrorist organizations, providing material support and resources to foreign terrorist organizations, conspiracy to contribute services to al-Qaeda, contributing services to al-Qaeda, conspiracy to supply services to the Taliban, supplying services to the Taliban, and using and carrying firearms and destructive devices during crimes of violence.

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In the early going, John Walker Lindh and his U.S. captors may have been in a legal quandary, tangled in a warp between the international law of war, the Uniform Code of Military Justice, and federal criminal statutes, but the success or failure of the prosecution may well...
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Sunday, 10 February 2002 12:00 AM
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