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CNN Live Today

Lindh Attorneys Seek Dismissal of Charges

Aired June 17, 2002 - 12:39   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.
FREDRICKA WHITFIELD, CNN ANCHOR: Attorneys for John Walker Lindh say the deck is stacked against him and they are asking a federal judge to dismiss allegations of aiding the Taliban and conspiring to kill Americans. At very least, they are asking today that the trial be moved to a place that might be more sympathetic. Walker Lindh was in the courtroom today at a hearing in Alexandria, Virginia.

And our CNN's Bob Franken has been covering the story -- hi there, Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Hello, Fredricka.

And the state of play now is, is that the hearing will resume in a little under three hours. The judge says that he will either hear more arguments after more than two hours of arguments or he will take the case under advisement -- that is to say not rule today -- or he'll rule today. So, those are the three possibilities in about three hours.

Now, as for a general theme on the part of the United States attorneys, it was, to put it in common talk, that the court should butt out. Referring to the questions about whether John Walker Lindh was a lawful combatant, as his attorneys claim, the government lawyers said this judgment by the executive is in fact nonjusticiable. That is to say, the court has no business being there.

This is a matter, they went on, that the court should not be about deciding; further consideration should be foreclosed. Of course, that is the position of the U.S.: that it is entirely up to the president and nobody else to decide who is and who is not a lawful combatant. The president, they went on in another part of the case, is the commander in chief. But defense attorneys said you cannot charge a soldier with murder simply for being a soldier. This is not a political matter. This isn't something the government can decide by executive fiat.

Now, as for questions about the charge that John Walker Lindh was illegally helping the Taliban and al Qaeda, defense attorneys claim that this was an unconstitutional guilt by association, which is prohibited by the First Amendment. But the prosecution said: "This is not fundamentally about association. It is about acts of violence on the behalf of groups bent on violence." That, of course, was a quote.

The defense also charged that John Walker Lindh was being involved in selective prosecution. That is something that the government denied. There was quite a bit of debate on change of venue, with defense attorneys pointing out that this courthouse is just nine miles away from the Pentagon, which of course was hit by the terrorist attack on September 11.

He said -- the defense attorney, Jim Brosnahan, said that, as a result, there is a collective mourning in community -- quoting again -- "How can you get a fair trial under these circumstances?" But the government countered by saying that jurors in Eastern Virginia would be as fair-minded as any in the country. And then they sort of gave away why their strategy would have this case tried here when they said they would expect that justice would be fair and swift. An appeal that always been present here in Alexandria, Virginia, at this courthouse is what they call the rocket docket: that matters are decided very quickly -- Fredricka.

WHITFIELD: And, Bob, what did John Walker Lindh look like as he was in court today?

FRANKEN: Well, I can tell you, he looked like nothing like he did in the pictures. He is clean-shaven these days. He came in in his green uniform, with prisoner written on the back. And for the first time in anybody's memory, as he was leaving, he turned to his family, his father, his mother and his sister. He nodded at them, smiled at them as everybody walked out. He'll be back in the courtroom at 3:30. And, presumably, so will they.

WHITFIELD: And, thus far, family members have not said anything, I presume?

FRANKEN: They have not. They are very friendly in the courtroom off camera. But today they are not saying anything. Of course, this a very important legal argument. The stakes here are that, if the defense was successful, the entire case could be thrown out. Nobody expects that to happen.

WHITFIELD: All right, Bob Franken, thank you very much from Alexandria.

Let's bring in our legal analyst Jeffrey Toobin. He's in New York.

Jeffrey, once again, thanks for joining me.

Well, the defense team is saying that John Walker Lindh is the subject of selective prosecution. Do you suppose they are making a good point?

JEFFREY TOOBIN, CNN LEGAL ANALYST: These arguments are very likely to be made to the jury, too. In many respects, this is really a preview of what the trial is going to be: the claim that John Walker Lindh was really fighting for the Northern Alliance, not against the United States.

What judges often do in situations like that is say: "Look, make the argument to the jury. Don't make it to me. Let me -- I will allow this case to go forward, but I am not foreclosing you from making those arguments, but you have to make them to the jury, not to the court."

As for pretrial publicity, the events of September 11 were so enormous around the country, not just in Virginia, that it strikes me as very unlikely that John Walker Lindh will get a change of venue, even though this courthouse is only nine miles from the Pentagon. What judges usually say in those circumstances is: "We will do voir dire. We will examine each jury individually, and ask whether they feel they can be fair, and pick only those jurors who can be fair," so that the pretrial publicity is screened during jury selection.

WHITFIELD: But the defense is fighting passionately to even keep it out of court. They want these charges dropped altogether.

You just heard Bob say the defense team is saying that he is being treated as though he is guilty by association. Now, the prosecution says they have every reason to believe that he was operating to conspire against U.S. forces. But the prosecution doesn't have any evidence, do they, any physical evidence that he actually did carry out any violence against U.S. troops?

TOOBIN: Well, one of the big issues in this case is what the evidence is that John Walker Lindh did. In fact, most of the evidence in this case, based on the indictment and based on what has become public so far, comes out of John Walker Lindh's own words.

He gave an extensive statement to the FBI. And there is a big question that will be decided later before trial whether that was a legally obtained piece of evidence. That is going to be the crucial pretrial legal issue in this case. And the government argues that his own statements amount to an admission that he knew about the attacks that came on 9/11 and that he participated in the al Qaeda effort.

What exactly he did, that remains to be seen during the trial. But you're right. Evidence of his specific actions we haven't seen so far.

WHITFIELD: All right, Jeffrey Toobin, thanks very much.

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