FBI Fails To Tape Record
Or Transcribe Lindh's
2-Day Interrogation

By Lenny Savino And Frank Davies
The Miami Herald

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.
''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 largely 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 statements 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 government 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 counts of conspiring with Afghanistan's Taliban government and the al Qaeda terrorist network to kill Americans. He faces life imprisonment with no possibility of parole.
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 shipping container to a tent and his blindfold removed. At that point, defense lawyers contend, Lindh asked an FBI agent for a lawyer and was told none were available.
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 medical 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. Typically, the agent fills out the form based on notes taken during questioning.
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 confessed to.''
Despite the controversy surrounding the alleged confession, it will be hard for a judge to not allow the FBI's version of Lindh's questioning 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 world, 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.''
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 [soldiers] asking questions, especially in a battlefield situation,'' said Mark Tushnet, 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 saying.''

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