- WASHINGTON - The FBI may
have violated its own rules in questioning John Walker Lindh by not taping
or transcribing his statements, and that could determine the outcome of
the case against him, experts said Thursday.
- The FBI's only record of its two-day interrogation of
the accused Taliban fighter is a summary form written by the agent who
questioned him. Lindh did not sign the form.
- `WHERE'S THE PROOF?'
- ''Everything turns on the confession. If it's thrown
out, where's the proof?'' said former federal prosecutor Gregory Wallance,
now a private attorney in New York City.
- The defense and prosecution agree the case depends
on the FBI's account of an interrogation with Lindh on Dec. 9 and 10 while
Lindh was a U.S. military prisoner at Camp Rhino in southern Afghanistan.
But the FBI's interview with Lindh appears not to have been recorded, an
FBI agent testified this week, or transcribed and signed by Lindh.
- Prosecutors say other witnesses and incriminating
by Lindh back up what the government characterizes as a confession, but
Lindh's defense team plans to attack the FBI's interrogation procedures
and Lindh's treatment before responding to the FBI's questions. The
has said Lindh waived his right to an attorney, but the defense said he
requested an attorney and was denied one.
- Lindh, who turns 21 on Saturday, is charged with 10
of conspiring with Afghanistan's Taliban government and the al Qaeda
network to kill Americans. He faces life imprisonment with no possibility
- In a filing this week, defense attorneys argued that
while at Camp Rhino, Lindh was stripped, bound, blindfolded, taped to a
stretcher and kept outdoors in a metal shipping container with only one
blanket to keep warm. After two to three days, he was taken from the
container to a tent and his blindfold removed. At that point, defense
contend, Lindh asked an FBI agent for a lawyer and was told none were
- RIGHT TO LAWYER
- That's not what the prosecution's filings say. They say
Lindh waived his right to a lawyer voluntarily and ``stated that he has
been treated well by the military, and has received adequate food and
treatment while in their custody.''
- Here's the prosecution's problem: When asked at a bond
hearing Wednesday whether any recorded or written statement was taken at
Lindh's alleged confession, FBI Special Agent Anne Asbury answered: ``To
my knowledge, no.''
- Asbury said that she was not the agent who interrogated
Lindh, and that she had flown to Afghanistan and prepared Lindh's arrest
affidavit from the information provided on another agent's report.
- The FBI's ''Legal Handbook for Special Agents'' states:
``Where possible, written statements should be taken in all cases in which
any confession or admission of guilt is obtained.''
- When a written statement is prepared, the suspect has
the right to correct and amend it before signing it.
- The FBI has offered no explanation as to why taking a
written statement would have been impossible in Lindh's case, but a U.S.
law enforcement official, who asked not to be identified, said Thursday
that agents broke no rules.
- On occasion, he said, an agent's official report on an
interview, called a Form 302, can be used to document a confession.
the agent fills out the form based on notes taken during
- Beth Wilkinson, a former prosecutor in the Oklahoma City
bombing cases, said the FBI often does not tape interviews.
- ''Just sitting there taking notes is less intimidating
than taping and helps you get information,'' she said.
- Legal experts say the government's highest hurdle will
be convincing a jury that Lindh made the statements the FBI says he made
and that they were given voluntarily.
- ''The case rises and falls with the confession,'' said
Henry Hockeimer, a former federal prosecutor now in private practice in
Philadelphia. ``It's a tough case from the government's standpoint because
you may not have other facts to corroborate the conduct he supposedly
- Despite the controversy surrounding the alleged
it will be hard for a judge to not allow the FBI's version of Lindh's
given widespread public sentiment against him, said Jon Sale, a former
Watergate prosecutor and private attorney in Miami.
- ''In a perfect world, the burden is on the government
to show Lindh knowingly waived his rights,'' Sale said. ``In the real
given that the public views him as a most heinous traitor, it would take
a lot of courage for a judge to throw out that confession.''
- BUILDING A CASE
- Lindh's lawyers, by their questions, appear aware of
the FBI's rules on confessions and intent on using them to build a case
for rejecting his confession.
- Prosecutors, in their brief filed this week, said they
plan to buttress the FBI account of Lindh's statements with a CNN interview
with him on Dec. 2 and statements he allegedly made to U.S. soldiers who
detained him in Afghanistan.
- ''The government will say there's nothing wrong in
asking questions, especially in a battlefield situation,'' said Mark
a constitutional law professor at Georgetown University. ``But whether
you can use that in a criminal prosecution is a tough question.''
- Sale said the CNN interview would likely be admissible
``if it can be shown that Lindh was lucid enough to know what he was