Jihad and the Right to Counsel

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John Walker Lindh

It takes a certain smugness to assume that one can have it all — dabbling in the ultimate form of war tourism as a volunteer in al-Qaeda's militant jihad against the West, yet supposing that the full wingspan of American constitutional jurisprudence will protect you on the front lines. That's what we see in the case of John Walker Lindh.

A refresher: Lindh is the Californian who went off to study Islam in Pakistan, and soon graduated to an al-Qaeda training camp in Afghanistan. He reportedly met Osama bin Laden and then went off to fight in the north of Afghanistan. There he stayed on the Taliban front lines, shoulder to shoulder with al-Qaeda fighters, even after learning of the September 11 attacks on civilians at the World Trade Center in New York.

In late November, Lindh was captured and sent to a prison compound near Mazar-i-Sharif with other self-appointed jihad warriors. Lindh refused to talk to an American agent who questioned him alone at the prison. The al-Qaeda prisoners didn't stay surrendered for long, overpowering the guards with grenades hidden in their clothing and killing the agent who had talked to Lindh. A week later, after the revolt was quelled, Lindh was taken from the basement of the prison complex, treated for his wounds, and questioned again.

His parents hired San Francisco lawyer James Brosnahan to defend their son. But during his custody in American hands, Lindh didn't do himself any favors. He was unabashed about his exploits. The government says he waived his right to an attorney. He gave an interview to CNN, and talked openly about his commitment to al-Qaeda and the Taliban.

Now, of course, his lawyer wants to suppress those statements. That's an understandable tactic; the criminal charges pending against Lindh in federal district court in Alexandria, Virginia could send him to jail for life. But Brosnahan faces some serious obstacles in defending the American Taliban.

Chief among them: This was war, and under the law of war, a battlefield commander and his intelligence officers are entitled to interrogate any captured prisoners, to glean useful information about battle plans, future attacks, and enemy forces. At the time Lindh was captured, the ground war in Afghanistan was hot and heavy, and the U.S. was very interested in what the young American might know about al-Qaeda's plans in the region and elsewhere.

The Geneva Conventions permit the interrogation of captured fighters on any subject. There is no mention of the Miranda standard in any of the Geneva treaties, and no mention of a right to counsel unless and until a detainee is put on trial for war crimes. Indeed, the famous Geneva requirement that a soldier is obliged to give his name, rank, and serial number is at odds with Mr. Brosnahan's version of a speak-no-evil right to silence.

Taliban fighters may not even deserve all of Geneva's privileges, as the White House argues, because their aid to al-Qaeda's terrorist activities was heedless of the laws of war. Blowing up occupied skyscrapers to kill civilians is certainly inconsistent with the laws of war, just as it violates the Koran.

Brosnahan will muster a fistful of theories to suppress the use of his client's statements, hoping that some of them will stick. He will charge coercion. The CIA agent first on the scene at the Afghan prison allegedly told the young Taliban that he had to choose if he wanted to live or die because his colleagues couldn't take all the Taliban prisoners into American custody. But Lindh didn't talk at the time, and after the uprising was safely placed in American hands anyway. Brosnahan has charged that a voluntary statement was later impossible because his client was wounded and under treatment. But there is no suggestion that Lindh was in a dream state or imagining his adventures when he recounted them at length to American interrogators.

Brosnahan will also argue that questioning should have stopped as soon as he requested a chance to see his client. But only a suspect, not his parents, can accept an offer of counsel, and Lindh reportedly waived his right to counsel after standard Miranda warnings by FBI agents brought to the scene.

The major point remains the same. A later prosecution for war crimes or terrorism does not insulate a battlefield prisoner from the inconveniences of war-fighting. Combatants are subject to internment until a conflict is over, to keep them from returning to the battle. And they can be questioned at length for intelligence purposes. Criminal charges, judges, and courtrooms have nothing to do with it.

One may draw a close analogy from the world of intelligence wiretaps. Electronic surveillance can be used against foreign powers and persons working for foreign powers, even within the territorial United States, and the threshold to allow this is far lower than the criminal law standard of probable cause. The information obtained, if it reveals a crime, can also be used at trial, so long as the original purpose of the tap was not pretextual.

Perhaps the greatest evidentiary problem for Brosnahan and his client is Lindh's bedside interview with journalist Robert Pelton shown on CNN last December. One can debate Pelton's technique, and whether it's good journalism to feign sympathy with a violent man, offering to e-mail his parents and saying of jihad that "I respect the cause and I respect the call." But the interview could hardly be called "involuntary."

A judge reviewing the broadcast tape will be able to evaluate Lindh's demeanor and composure. Lindh was not grunting one-syllable answers to yes-or-no questions put by Pelton. Rather, he gave a ground-level narrative of his progress in fighting in the jihad. He said that the front-line brigade was "funded by [Osama] bin Laden" along with the training camp. "We all have the same cause," noted Lindh. "Did you enjoy the Jihad?" Pelton asked. "Was it a good cause for you?" "Definitely," replied Lindh.

In finding the path of the law in a time of peril, we need to understand that al-Qaeda's terrorism is intended as a public war against the West. It is not just crime, and certainly not adventure. The noisy motions in the Lindh case may be much ado on the way to a guilty plea. But in other situations, such as war crimes tribunals, internment of combatants, and pursuit of al-Qaeda in third party countries, we may also have to reconcile the separate legal regimes of war and criminal law. Law's adaptation to danger is a problem we have to think through soberly, to keep both our country and our liberties safe.

Ruth Wedgwood is a professor of law at Yale and Johns Hopkins University, and a former federal prosecutor.