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FBI Has No Evidence Of Treason In Walker Case
Government Had No Documentation That He Confessed, And Never Read Him His
Rights
2/8/02 3:21:50 PM
Miami Herald
Alexandia, Virginia -- MIAMI HERALD
Posted on Fri, Feb. 08, 2002
FBI failed to get Lindh's statement in writing
BY LENNY SAVINO AND FRANK DAVIES
[EMAIL PROTECTED]
WASHINGTON - The FBI may have violated its own rules in questioning John
Walker
Lindh by not taping or transcribing his statements, and that could
determine
the outcome of the case against him, experts said Thursday.
The FBI's only record of its two-day interrogation of the accused Taliban
fighter is a summary form written by the agent who questioned him. Lindh
did
not sign the form.
`WHERE'S THE PROOF?'
"Everything turns on the confession. If it's thrown out, where's the
proof?''
said former federal prosecutor Gregory Wallance, now a private attorney in
New
York City.
The defense and prosecution agree the case depends largely on the FBI's
account
of an interrogation with Lindh on Dec. 9 and 10 while Lindh was a U.S.
military
prisoner at Camp Rhino in southern Afghanistan. But the FBI's interview
with
Lindh appears not to have been recorded, an FBI agent testified this week,
or
transcribed and signed by Lindh.
Prosecutors say other witnesses and incriminating statements by Lindh back
up
what the government characterizes as a confession, but Lindh's defense
team
plans to attack the FBI's interrogation procedures and Lindh's treatment
before
responding to the FBI's questions. The government has said Lindh waived
his
right to an attorney, but the defense said he requested an attorney and
was
denied one.
Lindh, who turns 21 on Saturday, is charged with 10 counts of conspiring
with
Afghanistan's Taliban government and the al Qaeda terrorist network to
kill
Americans. He faces life imprisonment with no possibility of parole.
In a filing this week, defense attorneys argued that while at Camp Rhino,
Lindh
was stripped, bound, blindfolded, taped to a stretcher and kept outdoors
in a
metal shipping container with only one blanket to keep warm. After two to
three
days, he was taken from the shipping container to a tent and his blindfold
removed. At that point, defense lawyers contend, Lindh asked an FBI agent
for a
lawyer and was told none were available.
RIGHT TO LAWYER
That's not what the prosecution's filings say. They say Lindh waived his
right
to a lawyer voluntarily and "stated that he has been treated well by the
military, and has received adequate food and medical treatment while in
their
custody."
Here's the prosecution's problem: When asked at a bond hearing Wednesday
whether any recorded or written statement was taken at Lindh's alleged
confession, FBI Special Agent Anne Asbury answered: "To my knowledge, no."
Asbury said that she was not the agent who interrogated Lindh, and that
she had
flown to Afghanistan and prepared Lindh's arrest affidavit from the
information
provided on another agent's report.
The FBI's "Legal Handbook for Special Agents" states: "Where possible,
written
statements should be taken in all cases in which any confession or
admission of
guilt is obtained." When a written statement is prepared, the suspect has
the
right to correct and amend it before signing it.
The FBI has offered no explanation as to why taking a written statement
would
have been impossible in Lindh's case, but a U.S. law enforcement official,
who
asked not to be identified, said Thursday that agents broke no rules.
On occasion, he said, an agent's official report on an interview, called a
Form
302, can be used to document a confession. Typically, the agent fills out
the
form based on notes taken during questioning.
Beth Wilkinson, a former prosecutor in the Oklahoma City bombing cases,
said
the FBI often does not tape interviews.
"Just sitting there taking notes is less intimidating than taping and
helps you
get information," she said.
Legal experts say the government's highest hurdle will be convincing a
jury
that Lindh made the statements the FBI says he made and that they were
given
voluntarily.
"The case rises and falls with the confession," said Henry Hockeimer, a
former
federal prosecutor now in private practice in Philadelphia. "It's a tough
case
from the government's standpoint because you may not have other facts to
corroborate the conduct he supposedly confessed to."
Despite the controversy surrounding the alleged confession, it will be
hard for
a judge to not allow the FBI's version of Lindh's questioning given
widespread
public sentiment against him, said Jon Sale, a former Watergate prosecutor
and
private attorney in Miami.
"In a perfect world, the burden is on the government to show Lindh
knowingly
waived his rights," Sale said. "In the real world, given that the public
views him as a most heinous traitor, it would take a lot of courage for a
judge to throw out that confession."
BUILDING A CASE
Lindh's lawyers, by their questions, appear aware of the FBI's rules on
confessions and intent on using them to build a case for rejecting his
confession.
Prosecutors, in their brief filed this week, said they plan to buttress
the FBI
account of Lindh's statements with a CNN interview with him on Dec. 2 and
statements he allegedly made to U.S. soldiers who detained him in
Afghanistan.
"The government will say there's nothing wrong in [soldiers] asking
questions,
especially in a battlefield situation," said Mark Tushnet, a
constitutional law
professor at Georgetown University. "But whether you can use that in a
criminal
prosecution is a tough question."
Sale said the CNN interview would likely be admissible "if it can be shown
that
Lindh was lucid enough to know what he was saying."
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