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American Morning

In a Few Hours, John Walker Will be Arraigned in Federal Court

Aired February 13, 2002 - 07:05   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: Up front this morning, the case of John Walker Lindh. In just a couple of hours, the Taliban American will be arraigned in federal court in Alexandria, Virginia. Now, he is expected to plead not guilty to a series of terrorism related charges and it is expected a November trial date will be set.

And CNN's Jonathan Aiken is standing by outside the U.S. District Courthouse in Alexandria. He joins us now -- good morning, Jonathan.

Walk us through what's going to happen today.

JONATHAN AIKEN, CNN CORRESPONDENT: Good morning, Paula.

Pretty straightforward legal happenings this morning at the federal courthouse in Alexandria. Three things are going to happen at 9:00 a.m. Eastern when this arraignment trial takes place, this arraignment hearing takes place.

John Walker Lindh and his lawyers will be brought in. Federal prosecutors will be there. It'll be in the courtroom of Judge T.S. Ellis. Once things get under way, here comes an order. The charges will be formally presented to John Walker Lindh. He faces 10 counts from a federal grand jury indictment. There's a federal grand jury sitting here at the courthouse. They handed up this indictment last week.

After the charges are formally presented, Walker will have the opportunity to present for the first time his plea to these charges, and we're not expecting any surprises. We should get not guilty or innocent pleas all the way down.

The third thing that takes place is the trial date, and here's where things get a little interesting. Normally the procedure is the trial has to start 70 days after the arraignment. Well, both the defense and the prosecution have gotten together and the one thing they do agree on is that 70 days won't be enough and as you mentioned, the trial date is likely to be some time in mid November.

Two distinct reasons for this, however, depending upon what side you talk to. For the defense, Walker's lawyers say pretrial publicity is their concern. They want the passions around the case and their client to subside between now and November. The Feds say that pretrial publicity is going to be there but they do agree with the defense it will be a difficult case. Evidence has to be taken from three countries, including a war zone -- Paula.

ZAHN: Describe to us the security there this morning. Is it anything like what we witnessed last week?

AIKEN: Well, security is tight and it's been sort of standard operating procedure how it works here. The U.S. marshals have the area immediately around the courthouse blocked off. There are streets on either side of the building. They, too, have been sealed. The detention center where Walker Lindh has been kept is about two and a half blocks to my right, your left. So those streets are sealed as he moves. And as you mentioned, he's already in the courthouse.

There's an open field over to my left that has also been sealed off and fenced off. And around us is general construction. This is a booming area, this part of Alexandria, and kind of hard to move around in anyway. But the area immediately around the courthouse pretty sealed up.

ZAHN: And will John Walker Lindh's family be there today?

AIKEN: John Walker Lindh's parents will, indeed, be here. We're not expecting them to say anything. They didn't say anything last week when they were here for their son's brief court appearance. It is possible that James Brosnahan, speaking on behalf of the defense, may have something to say. There will be a gaggle of microphones set up.

Also expected to be here are the parents of that CIA agent, Johnny Spann, who was killed during that prison uprising at Mazir-i- Sharif. We should add that Walker Lindh has not been charged in any way with anything connected with Johnny Spann's death. However, his parents are in town and are expected to make an appearance at the courthouse today -- Paula.

ZAHN: And what is the significance of their appearance there?

AIKEN: I think probably just emotional. You know, John Walker Lindh was one of the last people who their son saw before he was killed. Spann interrogated John Walker Lindh about 30 minutes prior to the beginning of that uprising in Mazir-i-Sharif and from all accounts that we have, Walker Lindh was kept in sort of a basement or a lower area of that fortress while the uprising took place above him. So we don't, apparently, according to the federal officials, he wasn't involved in Spann's death. But their presence here will be an emotional score for the prosecution.

ZAHN: All right, Jonathan Aiken, thanks so much for that report.

The big question this morning, will John Walker Lindh's confession be admissible at trial? The People versus John Walker Lindh may not be a slam dunk for the prosecution. The road from trial to conviction could be a bumpy one, indeed.

Joining us now from Washington, former federal prosecutor Cynthia Alksne, and from Boston, Alan Dershowitz, Harvard law professor and author of "Shouting Fire: Civil Liberties In A Turbulent Age," yet another book.

Good morning Mr. Dershowitz and good morning, Cynthia, as well.

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR: good morning.

CYNTHIA ALKSNE, FORMER FEDERAL PROSECUTOR: Good morning.

ZAHN: All right, Cynthia, I'm going to start with you this morning. Let's talk about the admissibility of some of the stuff the FBI got out of John Walker Lindh. We should point out the charges in the indictment are based almost entirely on his statements during a two day period that came during the interrogation on December 9 and 10 by an FBI agent.

Now, there have been two problems pointed out with what the FBI agent got. Only one agent spoke with Lindh and the agent failed to tape or transcribe what Lindh said.

Did the FBI blow it here, Cynthia?

ALKSNE: Well, whether or not there were one or two agents in the room will not affect whether or not his statement is admissible nor does it affect whether or not his statement is admissible if it's taped or, you know, transcribed at the exact moment or videotaped. That won't affect the admissibility.

What will affect the admissibility is whether or not it's true that the defense attorneys say that Mr. Walker was deprived of a lawyer after he repeatedly asked for one, he was held in isolation, he was deprived of food and water, he was held naked for days and duct taped to a cot. I mean they have very serious allegations.

Whether or not those are true, that will be the battleground that will happen during the hearing.

Now, you'll notice that the government has been very quiet about that, as they should be. But they don't seem that worried to me.

Over the years, I've seen defense attorneys make all kinds of allegations and when it actually comes to the hearing they have a tendency to fall apart. So we'll just have to wait till the hearing.

ZAHN: How strong do you expect this front to be on the defense's part, Alan?

DERSHOWITZ: Well, I think this is a non-starter for the defense. This is a serious mistake to put all their eggs in the basket of the exclusionary rule. This is the Virginia District Court. This is the Fourth Circuit, the most hostile court in the country to any kind of Miranda claims. If I were the defense attorney in this case, first, I would not be moving for a delay. I'd be moving for the speediest possible trial. The government's case on the merits is only going to get stronger, not weaker, as it interrogates more and more people and learns more information.

Right now the government's case of conspiracy to kill Americans is extraordinarily weak. There's nothing in his own confession that would support that. He apparently turned down an opportunity to kill Americans and kill Israelis, preferring instead to fight against the Northern Alliance.

This is a case in which there is no advantage, I don't think, to delay for the defense and every advantage to speed. I think the big surprise that we're seeing is that the defendant is sticking to the lawyers selected by his parents to present a kind of legalistic case. I think there were many who expected he would get up in court and say no, I did this, I did it in the name of Allah and I'm not going to have any kind of legalistic defense.

So that, I think, is the only surprise we've seen. Otherwise, we're seeing this case litigated the way conventional lawyers litigate conventional cases and this is anything but a conventional case.

ZAHN: All right, Cynthia, do you think the conspiracy against Americans prong is as weak as Alan says it is, from a prosecutor's point of view?

ALKSNE: No. I don't think it's as weak. First of all, I don't think it's as weak from the facts inside the indictment. And second, I think the indictment is based on Walker's statements and we don't know yet what else is in, you know, the prosecutor's bag, what other evidence they have, because they aren't talking. So don't assume because it's not in the indictment all the other factual basis for how they know this, that it doesn't exist.

And let's go back to the indictment...

DERSHOWITZ: Well, I do assume that.

ALKSNE: Let's just go back to the indictment for a second. Alan says there's absolutely nothing in the indictment to support the conspiracy charge and I disagree with that. Because in the indictment it does say that he joined this organization of bin Laden knowing that the goal of the organization was to kill Americans, that he knew in advance there were suicide missions in the United States, the goal of which was to kill Americans, that he stayed with the organization after September 11, that he met with bin Laden, where he was thanked for participating in the jihad and after the 4,000 Americans or so were killed. He not only stayed, but went into the hills to prepare for the assaults on Americans which would inevitably come.

So I disagree strongly that there's nothing in the indictment to support the conspiracy charge.

DERSHOWITZ: Well, I didn't say there's nothing...

ALKSNE: I will agree that it is a more difficult charge to prove, especially if there are no statements, which is why Mr. Brosnahan has no choice but to try to suppress the statements. And it may very well be in the investigation and as all the Taliban buddies of his get questioned, that more evidence arises.

DERSHOWITZ: I didn't say there was nothing in the indictment... ZAHN: What about that, Alan?

DERSHOWITZ: I said there is nothing in the evidence as far as I know. And remember that although the prosecution is remaining silent now, the attorney general of the United States has been trying this case in the press from day one and has been laying out what he believes is this very strong case.

There's a doctrine in conspiracy law known as bifurcated conspiracies. The Dr. Spock case in the Vietnam War set that out. If you join a general broad conspiracy like this, the government has to prove that you as an individual defendant adhered to specific unlawful goals. And so if you get a situation where even if he knew that there were people within this very broad conspiracy who were trying to kill Americans, if he specifically said that's not what I'm doing here, that's not what I'm joining, I'm joining an over arching political/military organization who has different goals, some good, some bad. I'm adhering to the good goals, that is, the non unlawful goals. I think that's a very, very strong case.

That doesn't mean he can win on the other counts of the conspiracy indictment, namely, conspiracy to aid terrorists. That's, I think, a very strong case. But conspiracy to kill Americans, if he can demonstrate that he specifically turned down an opportunity to do that, even if he knew that there were others who were in the al Qaeda camp who were doing the same thing -- this is not going to be a slam dunk.

That's why I think down the line we may be seeing some negotiation and some plea bargaining. This may be a win-win for both sides if they can get a plea to some of the other charges in the indictment. Because the one thing the government does not want to do is lose...

ZAHN: All right...

DERSHOWITZ: ... count one. That's too important for them.

ZAHN: Cynthia, I need a final thought on that, the potential of this being a win-win for both sides here?

ALKSNE: Well, it wouldn't be surprising to me if ultimately there was a plea agreement in this case because of the stakes. But any plea agreement will include a very long prison sentence.

DERSHOWITZ: Um-hmm.

ZAHN: All right, got to leave it there.

Cynthia Alksne, Alan Dershowitz, thank you both for joining us this morning.

DERSHOWITZ: Thank you.

ALKSNE: Thank you.

ZAHN: Appreciate your time.

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