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How Should John Walker be Tried?

Aired January 15, 2002 - 15:00   ET


KYRA PHILLIPS, HOST: Welcome back to TALKBACK LIVE: AMERICA SPEAKS OUT. I'm Kyra Phillips. You have heard the news about John Walker. Administration sources say that the Justice Department has decided to charge him with aiding abetting terrorists and terrorist organizations. But what exactly does that mean? Joining us now on the phone -- actually before we go to the phone, we are going to talk with criminal defense attorney Ron Kuby in just a minute. Also in New York defense attorney Harold Price Fahringer. He is best known for defending Klaus Van Bulow and Larry Flynt. We are going to get to them in just a second.

But first CNN's John King is standing by with the latest on this breaking information. John, what you can tell us about this?

JOHN KING, CNN CORRESPONDENT: Hello, Kyra. We are told the public announcement later this hour but we are told by senior administration officials that it boils down to this: John Walker Lindh, the 20-year-old American Taliban fighter who was taken into custody of the U.S. military in Afghanistan back in November, and has been held ever since, will be turned over to the Justice Department.

He will be Brought back here to the United States. Our understanding from sources is to northern Virginia, just outside of Washington D.C. and he will be charged in federal court, we are told, at least with this charge: Aiding and abetting a terrorist organization.

Now this has been a debate within the administration how to handle John Walker. It has become, because of the war overseas, part of the public debate in this country as well, some saying he should be charged with treason. That crime would carry the death penalty if he was convicted. Others saying he should be charged with other offenses.

What we know now at this point is that he will be charged with aiding and abetting a terrorist organization and that those charges will be filed here, we are told, in northern Virginia in the civilian federal court system. There was some debate as to whether he should be held by the military, or whether he should be turned over to the civilian justice system.

That decision made, the recommendation to the President we are told he signed off on it and he has been briefed we are told, on the charges the attorney general will outline later this hour at the Justice Department.

Again a senior administration official telling us a short time ago that to the best of his knowledge, John Walker still in the hands of the military, but that he would be turned over imminently, this official said to the Justice Department, and brought back to the United States to face charges of aiding the Taliban, aiding, in the view of the United States, a terrorist organization -- Kyra.

PHILLIPS: And John, what could those charges lead to?

KING: Aiding and abetting terrorism, if he is charged under one provision that was recently updated, the penalty strengthened a law recently passed by Congress in the wake of the September 11 attacks, aiding and abetting terrorism carries penalties of 15 years in prison, unless death results from the act, then it could carry a life sentence.

What we will need to look at are the specifics of any charges filed by the Justice Department. Another question will be, whether these charges now are simply to get him. You have to have a case against someone to have them transferred into your custody, whether these charges are the definitive final charges or whether the Justice Department has made preliminary charges pending a additional investigation. Those are questions we can't answer just yet. More details to come from the attorney general later, but that one charge, and that is one count.

We don't know how many counts might be filed in this case. Aiding and abetting terrorists under the statute as we read it, carries a penalty of 15 years in prison unless the government alleges that death resulted from it, then it could carry the death penalty. More details to come later this hour. The big news though, that he will be turned over from the Defense Department to the Justice Department very soon -- Kyra.

PHILLIPS: And John, when you say he is going to be turned over from the Defense Department to the Justice Department, how do conditions change for him? What is the different between the two?

KING: Well, he will have to -- remember the case of Zacarias Moussaoui, the only person charged in this country so far with events related to the September 11 attacks -- once he is in the civilian justice system, there will have be an arraignment or a hearing. He will have to go before a magistrate or a judge to have bail set.

It is certain in this case that the government will ask that no bail be set and that he continue to be held, but he will be transferred in to the civilian justice system.

The attorneys you have standing by can provide more details than I can, but he will be given an attorney in this country. His family has already hired an attorney. The questions is whether that attorney will continue to handle the case as it goes now into the federal court system.

So, he will be brought here, he will be charged, he will be arraigned, he will have to enter a plea. We can assume and we are told that the government will request that no bail be given and that he be held, and at that point then the government may want to interrogate him further as he has been held by the military, the administration has said he has been treated in accordance with the Geneva Convention and that he has been questioned by military officials about operations in Afghanistan, treated as a military detainee under the Geneva Convention.

Now that he is in the hands -- once he is in the hands of federal authorities, the civilian justice authorities here in the United States --he may well face additional questioning about his contacts with the Taliban, about any contacts with al Qaeda and Osama bin Laden. So he faces more questioning for certain as he comes back to the United States to face trial.

PHILLIPS: And on that note of questioning, John, we have some questions for you here from our studio audience. I am going to take it over to Chris Askew. He has been talking with folks in the audience. Chris, go ahead.

CHRIS ASKEW: Julie, go ahead.

JULIE: What exactly does aiding and abetting mean and why is he being charged with it?

KING: Aiding and abetting means helping. He gave material resources or personal resources to help a terrorist organization and we will get more details of the specifics, the specific things that the United States government accuses him of, once we see the charges filed in court. But aiding and abetting is simply the legal term for helping, in this case what the government calls a terrorist organization.

PHILLIPS: Our John King with the breaking news from the White House. Thank you so much, John. We will continue to check in with you as this story develops.

Right now joining us by phone to talk more about this is criminal defense attorney Ron Kuby.

Ron, thank you so much for joining us at the last minute.


PHILLIPS: Actually, we have more questions from the audience. Well, first, let me get your reaction to this -- general reaction.

KUBY: It's no surprise. Mr. Walker was ineligible to be tried before any sort of military tribunal because he is an American citizen. He retains his American citizenship. The administration had indicated that it intended to bring charges against him in civilian courts. And now it has taken the first steps to actually doing that.

PHILLIPS: All right, we are getting a number of questions coming through from our studio audience now, Ron, if you don't mind taking a few questions for us. Chris, go ahead.

ASKEW: Joshua?

JOSHUA: What was the last case of the similarity and what precedent was set for the prosecution of this type of individual?

KUBY: Well, it's an excellent question, it is easy to answer. There is no prior similar case. The anti-terror legislation under which he is being charged is very new legislation. That is it has just come forward in the past decade or so. And this aiding and abetting a terrorist organization providing material resources to a terrorist organization, these were laws drawn up primarily to go after banks and other fund-raising institutions that were creating money to be sent to terrorist organizations providing them with actual material resources.

These laws were never designed for the odd case like Johnny Taliban Walker. It's going to be very, very interesting to see whether they can make this law fit this young man's conduct.

PHILLIPS: What do you think?

KUBY: I think it's a stretch. It's been -- one of the problems the administration has always had with this, is an attempt to try to figure out what crime he committed. I mean, people's gut reaction of course is, well he has committed treason, he has betrayed his country, but in the absence of very concrete proof and irrefutable proof either through a confession in open court, or through two eyewitnesses, that he knew he was attacking Americans, rather than simply fighting against the Northern Alliance, with whom the Taliban had been at war, it will be very difficult to charge him with treason.

And of course, it will be very difficult to charge him with the traditional crimes that Americans, if they acted like this in America, would be charged with. Because there was a war going on.

PHILLIPS: Absolutely. We have a call now from Koreen (ph) in New York. Koreen, go ahead with your question.

CALLER: Hi. This is Korin. First of all I want to say, Ron, I listen to you in the morning.

KUBY: Thank you.

CALLER: And I love when you and Curtis go at it, but I do want to say about John Walker, I did hear what you had to say about it and as far as when I first heard about I thought he would tried as treason. In that case I would have wanted him executed. But I feel that the fabric of our country has been torn apart bit by bit because we let these people get away with whatever they are doing, atrocities, crimes against our country, and I feel that putting him into one of our federal prisons would be letting him get away it.

And I feel that it is opening the door for other criminals to do whatever they want against this country, and seeing that they will get away with it by living the life of luxury with cable television and three meals a day and a roof over their head. I think that he should be put to death.

And I know Ron is against that.

KUBY: For better or for worse, the law under which he is charged doesn't call for the death penalty. No. 2, most federal prisons are spartan affairs indeed, and No. 3 and I think probably more compellingly, we have all seen the dirty disheveled face of John Taliban boy, watched as he was brought up out of the diesel oil that he had been sleeping in for eight days with the wound in his leg.

The young people of America are not saying, gee, I want to be like that young man. That's what I want to do, daddy. I want to go to Afghanistan and nearly die some stinking jihad. People are saying, what was this guy thinking of?!

So, he is not inspiring anybody to be like him. Most of us all across this country, have reacted with revulsion. So we hardly need to execute this punk in order to deter other people from engaging in similar types of action.

PHILLIPS: Yes, you definitely wonder what he is thinking. And you want to hear from him, that's for sure.

Defense Attorney Harold Price Fahringer is now going to join us. He is best known for defending Klaus Van Bulow and Larry Flynt. He is going to get in on this conversation, Good to see you, sir.


PHILLIPS: What is your first react to the news today?

FAHRINGER: Well, first of all, we are always glad if they are able to locate someone who has been an active participant in terrorism against the United States. I agree in a way with what Ron just said in the sense that, you know, this is just a charge to hold him here.

What they are now going to do is they are going to conduct a very extensive grand jury investigation and I suspect by the time he is ultimately indicted there will be more concrete charges. I want to just mention one thing, as Ron must know too, that is, aiding and abetting really requires some very active participation.

It's not enough that you simply are a member of an organization. They would have connect him in some direct way for instance, with the World Trade Center tragedy, if that's what he going to ultimately be charged with.

PHILLIPS: Harold, you talked about the grand jury investigations. Let's talk a little bit more about that. Let's go into some details about what those could involve.

FAHRINGER: In Virginia they will convene a grand jury. A number of years ago some people remember, they brought a man by the name of Edwin Wilson back to the United States because the allegation was he has sold ammunition, explosives overseas to other nations. And so, what they will do is, they will hold him. I doubt very much that he is going to get any bail. They will keep him detained. And then what they do is, a grand jury, which consists of some 23 people, they will undertake the investigation of this matter and the prosecutor will bring in witnesses.

And they will try to establish a direct connection with him, and whatever offenses, and there may be a great variety of them that would be involved in this, and then an indictment will come down that could charge him with 15, 20, 30 counts of various crimes against the United States.

PHILLIPS: We are bringing another attorney into the mix here, Jack Burkman (ph) from D.C.

Jack we are going to get to you in just a second here, I promise, but Harold mentioned something -- Harold, you were talking about other witnesses.

Are saying that -- are we talking about other Taliban and al Qaeda fighters taking the stand?

FAHRINGER: No. I don't know exactly what...

KUBY: Maybe. Maybe they made some sort of agreement.

FAHRINGER: They may have some people available to them. Obviously you know the practice in this country is very often to give immunity to certain people who might have been implicated in any kind of conspiracy and then have them testify against him.

But it may be, in fact, in terms of direct evidence, it may be a very difficult undertaking for the government.

PHILLIPS: Ron, you said maybe, but hold on just a second. Jack Burkman, now I want to bring you into the mix here, I apologize. Your reaction to the conversation we are having here.

JACK BURKMAN, ATTORNEY: Kyra, first off I was a little disappointed with the president's decision today. As I understand it, they are not going to bring a charge of treason.

I think the charge in this case is far more serious than aiding and abetting. I think John Walker should be charged with treason. And I will tell you why. I think the case for it is very, strong, and I think if the president does not reconsider and does not consider further bringing the charge of treason, he really risks losing some support on the conservative side of his party.

This guy -- in most cases -- all of the legal analysts will tell you that treason is a very difficult charge. If you deal with guys like Clinton, or Nixon or Aaron Burr, you are dealing with political theory, you are dealing with abstractions and things are difficult to prove.

KUBY: I didn't know we were trying to prove a treason against Clinton.

BURKMAN: He bombed Iraq in '98 to divert attention from impeachment...


KUBY: Please!

BURKMAN: Those are allegations. Those are allegations. I am saying it is tough to prove. I might believe it. The point is getting back to Walker. This guy took up arms against the United States. All you need are witnesses to, one, that did he that, two, witnesses to the effect that this guy was aware that Taliban was fighting the United States, which is, unless he is a mute, or somehow mentally retarded, I don't think that is hard to prove.

I would urge the president, my message today is: Mr. President, please consider a charge of treason against this guy. This a really wedge issue for conservatives.

KUBY: I certainly think that the case against John Taliban Walker for treason is at least as compelling as the case for William Jefferson Clinton is for treason. Having said that, though, the notion that somebody who takes up arms in a struggle overseas against a U.S. ally, that person is committing treason, has never been sustained...

BURKMAN: Wait a minute. What do you mean a U.S. ally? The Taliban is engaged directly in combat what with the United States. He is in that army assuming he communicates with any other person in that army, he would know that he is fighting the United States. What do you mean ally of the United States?

KUBY: Remember, where he was captured he was fighting the usual gang of murderers, thugs and cut-throats that made up our new-found ally, the Northern Alliance. The fact that the United States has decided to use the Northern Alliance as sort of a sock puppet to carry out it's laudable policy doesn't make it treason against the United States.

BURKMAN: But you are missing the point. There are issues to try here. Look, there are...

PHILLIPS: All right, gentlemen, hold that thought. Jack, hold that thought. I promise we are going to come back to you guys...

KUBY: Please!

PHILLIPS: Don't worry, Ron, I promise, we are going to get back to this -- you are a handful. We are going to take you over to Leon Harris in the news room. He's got an update on the school shooting -- Leon.


PHILLIPS: Welcome back to TALKBACK LIVE: AMERICA SPEAKS OUT. We are talking about breaking news. The breaking news is that President George W. Bush approved allowing the Justice Department to charge American Taliban John Walker in court on charges of aiding terrorism.

We have brought in a number of attorneys to talk about the breaking news. We have got Gloria Allred, who just comes into the mix now from Los Angeles, talk show host and attorney.

Jack Burkman, also with us from D.C., an attorney. Harold Price Fahringer, defense attorney who joins us, and Ron Kuby, by phone, First Amendment attorney. All of you, thank you so much for the last minute notice. We really appreciate it.

Gloria, you are the last one to join the mix, I should say. What is your first reaction to all of this? Let's get your stance and your opinion?

GLORIA ALLRED, ATTORNEY: It is interesting. I know that the Justice Department has been, for white a while, reviewing the kinds of charges that may be brought against John Walker, and ultimately, I guess they settled on this, although this may not be the only charge that is ultimately leveled at him.

There are lots of complexities in the law. Elements of the crime are going to have to be proven. And you know, there are also issues, it is going to be interesting, can he possible get a fair trial in the United States? There is probably no one in America who is unaware of John Walker and then the question is what did he know and when did he know it?

Did he think, in fact, that he was providing assistance against the United States, or did he think he was fighting for the Taliban, which, at a certain point, the United States supported before September 11?

BURKMAN: That really is the question, Kyra. I would just jump in and say, if in fact, I think Gloria has laid it out nicely, although I suspect she and I have different conclusions and are on different sides to this, I think there is an issue as to what John Walker knew and when he knew it, but I don't think it is difficult to prove that he was aware that his Taliban forces were fighting directly against the United States.

I mean, my God, there are jets, there are all of these supersonic jets flying above, from what country could they have come?

PHILLIPS: Jack you are disappointed because you want him charged with treason.

BURKMAN: Absolutely.

PHILLIPS: You are saying there is no reason he should be charged with treason, because he is not, he is very able, mentally, is what you are were saying, right?


PHILLIPS: Well, how do we know that? A lot people think that this guy is nuts.

BURKMAN: You don't and again these are legitimate issues of material fact at trial. But my point is that insanity is a very threshold. It is very difficult to prove that. If he wants to get off on the insanity defense, well, that is very hard to do. That is less than one percent of all cases.

I do not even think they would go that route. I think the president is very concerned about sympathy here. But it seems to me that the images of 9-11 are getting a little bit too distant for us as Americans. This guy, let's say this again, this guy is fighting with a force that had a lot to do with 9-11. This guy is fighting with an army that is harboring and has harbored and continues to harbor al Qaeda. And I think a lot of Americans, when we talk about the legalisms, we are forgetting the source of this, and we are forgetting why we are talking about this.


PHILLIPS: Go ahead, Ron.


FAHRINGER: If I could just break in here.

PHILLIPS: Harold, go ahead.

FAHRINGER: We are a country of constitutional tradition. The one thing we cannot afford to do in my view as a nation that is dedicated to law and proper procedure, we cannot become like the enemy. We have to make sure that Mr. Walker is accorded due process, that he is tried fairly, and convicted, if that is the outcome of the case.


FAHRINGER: To charge him with treason for political reasons I think would be clearly wrong under our form of government.

ALLRED: I do not think any of us have for gotten September 11 and all of the thousands and in a way, millions of victims of September 11. I do not think any of us could or would forget it. Having said that, I agree. He has got to be afforded all of his rights, and it is going to be interesting, was he read his rights before he was interrogated by the government? And my guess is that there will be an issue about that, if and when he actually goes on trial.

BURKMAN: Gloria, let me ask you this question. If in fact it can be established, let's assume arguendo (ph) , that he was aware that the Taliban was fighting against the United States at the time he was serving in the Taliban forces. Let's assume that for the sake of argument. Would you then support a charge of treason against him?

ALLRED: Well, it's difficult. You know, there are other issues for example, was there an official declaration of war? BURKMAN: Oh, Gloria, that has nothing to do with what we are talking about.


PHILLIPS: Ron, go ahead.

KUBY: It most certainly does have something to do with whether or not the crime of treason can be proven. It's not indispensable, but the vast majority of treason cases -- and there have been very few -- have taken place in the context of a declared war. There were no treason trials, for example, in Vietnam, despite the fact that many G.I.s abandoned their positions and some took up arms against the United States on the side of the Viet Cong.


KUBY: It is very difficult to prove.

BURKMAN: What you are saying, then, is that even if this guy fired on American soldiers, if it wasn't a declared war, there would be no charge of treason? Is that what you're arguing?

KUBY: No, what I'm saying is, there's no evidence so far that anybody has put forward to suggest that indeed he did fire on American soldiers. And the cutthroats and murderers of the Northern Alliance are not American soldiers, even though we may have temporarily thrown our lot in with them.

PHILLIPS: And just to let you guys know, we are going to have a press conference coming up any minute now with the Justice Department, just -- and we want you to stand by and listen to that so we can get responses from all of you with regard to that. We are standing by live right now, waiting for that news conference to begin.

We have got many questions from the audience. So let's go ahead and go over to Chris.

What is the question from Darla?

DARLA: I, first of all, salute the need to maintain the utmost of consideration to our democratic principles and our court system the way that it has been and not just a political statement and a political charge that is brought here.

And, as a result, I am curious as to how prima fascia evidence will be collected and gathered in this particular this case?


FAHRINGER: For one thing, it is going to be extremely difficult. I think everybody would agree on that, because I would suspect that the greatest source of information would be overseas, and that there are not going to be too many people in this country that can furnish the kind of evidence that would satisfy not a grand jury -- that would be fairly simple -- but a trial jury. And the one thing I would expect the Justice Department to be very careful about is not to just lay a lot of charges here that they have no chance of establishing and proving. So there is going to be a sorting-out process here that will play a dynamic role in what he is ultimately charged with.

ALLRED: It is also going to be interesting to see whether the government tries to use al Qaeda witnesses against John Walker and how a jury would assess the credibility of an al Qaeda fighter.

PHILLIPS: That was my question, Gloria. That is what I was wondering.

BURKMAN: You are going to have to because they are necessary. You're going to have to. Otherwise, you can't try the case.

Kyra, part of the problem here is, I think this guy should have been given a military tribunal. Under the Quirin case, even though he is a citizen, in time of hostilities, the U.S. Supreme Court, in Ex Parte Quirin, gives the president the right to use a military tribunal. And I think that was part of the answer.


KUBY: It was part of the answer to what, the political problem of coming up with enough evidence to convict him? So instead of actually charging him with something he may have committed, we send him to an unfair forum, a phony drumhead court conducted in secret so we can shoot him? That is the solution? What is the problem?


BURKMAN: Let me tell you something. I see no reason to give a bum like John Walker more than the law allows.


BURKMAN: The Constitution -- the Supreme Court has said in Quirin that in a time of war, the president, under certain circumstances, has right to use a military tribunal not just for noncitizens, but for citizens. And I think that ruling fits Walker's case to a tee.

KUBY: No. 1, as you well know, World War II was a declared war. And, No. 2, and more specifically, there was specific legislation authorized by Congress that gave the president the power. The Quirin case was very careful. The Supreme Court was very careful to say: We don't decide whether the president has this authority on his own.


PHILLIPS: All right, guys, we have got to take a quick break. We've got to take a quick break. First Amendment attorney Ron Kuby, I understand you have to go. I wish that was not the case. If it's true, we want to thank you so much for being with us.

KUBY: Thank you.

PHILLIPS: All right.

We're going to take a quick break and continue this discussion. Stay with us.






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