Lindh Outsmarts the Government
May 22, 2002

Maria Tomchick

Hundreds of people, perhaps thousands, are still in indefinite detention post-9/11, without access to legal representation, without being able to see family members or friends, and without being charged with any crime.

Legal cases, funded by the detainees' families, are beginning to pass through the courts challenging the Ashcroft Justice Department's trampling of the detainees' rights. And now there's a new challenge to the US government's treatment of Taliban and Al Qaeda prisoners at Guantanamo Bay: John Walker Lindh.

Lindh, as you'll remember, was the American captured after a bloody prison uprising in Northern Afghanistan late last year, in which US planes and tanks bombed the hell out of a fort, slaughtering hundreds of Taliban prisoners, many of them unarmed. Lindh was flown back to the US, where he and his lawyers are getting ready for a treason trial scheduled for August. Right now, the lawyers are working on pre-trial hearings, depositions, and evidence gathering.

The Lindh lawyers have taken a logical move that makes the government prosecutors look like clowns. In early May, they filed a motion requesting permission to interview 12-15 Taliban and Al Qaeda prisoners being held at Guantanamo Bay. This would help them establish the fact that Lindh had nothing to do with planning the prison uprising in which CIA agent Mike Spann was killed.

This tactic will eventually do one of two things. It could bring those prisoners into the US justice system, where they would be allowed the same rights that other US prisoners have to legal counsel, a speedy trial by jury, and a chance to view evidence and address the charges against them (formal charges would have to be made in order to keep them in detention), and they would have the right to be held under more humane conditions (and not in open-air cages). On the other hand, if the Justice Department refuses to let Lindh's lawyers interview the Guantanamo Bay prisoners, then the government would be violating Lindh's right to view and challenge evidence against him in court, and the judge will likely dismiss the government's case.

The judge in Lindh's case, US District Court Judge T.S. Ellis III, has already warned the government's legal team that it had better find a way for Lindh's lawyers to do the interviews or else the government "may not be able to proceed against this defendant."

The government is trying to find a way around face-to-face interviews. At first they suggested that Lindh's lawyers submit written questions to which the prisoners would supply written answers through a translator. Lindh's lawyers protested, claiming that this would hamper their ability to ask follow up questions or to clarify points that might be garbled through translators. It would also make it impossible for them to judge the credibility of the witnesses.

The government prosecutors then suggested one-way video tape, and this satisfied the judge. The decision to either bring the Guantanamo Bay prisoners into the US legal system or lose the case against Lindh on technical grounds was postponed. But the judge stressed that, come the day of Lindh's trial, Lindh may still exercise his 6th Amendment right to call these prisoners as witnesses to testify in court, and the government will have to make its decision. Stay tuned.