Brosnahan has not commented on the letter and has said little about how he might represent the American POW in a courtroom. But Ronald L. Kuby, the New York attorney whose clients have included those implicated in the 1990 murder of militant Rabbi Meir Kahane and the 1993 World Trade Center bombings, is familiar with the legal challenges that lie ahead. Kuby spoke to NEWSWEEK’s Gretel C. Kovach about the charges Walker could face and the legal arguments that may be heard in the coming months and years. Excerpts:
NEWSWEEK: If you were Walker’s lawyer, what would your defense be?
Ronald Kuby: I think it would be a combination of Patty Hearst meets the Moonies. [The heiress Hearst was kidnapped and then briefly converted to the Symbionese Liberation Army in 1974.] Here was a young man who ended up gradually being sucked into a mind-control cult, who ended up in a situation in which he found himself in way over his head, and there came a point when he was not really free to leave. Once you’re marching with the Taliban in Afghanistan, once you’ve gotten in that deeply, you can’t turn around and say “Gee, I think I want to go back home, take a hot shower, eat a Big Mac and check out Disney World.” Depending on the allegations against him, you would probably also want to demonstrate that he did not know that the people he was fighting against were Americans. That as far as he knew, these were the usual murderers, rapists and cut-throats of the Northern Alliance.
Would you defend John Walker Lindh?
Oh yeah, I would. Assuming there is no evidence that he actually killed American soldiers. And nobody is alleging that he has. I personally think [John Walker] is a pathetic schlub who was deluded by religion, as so many young people have been, and was badly in need of some serious parental guidance. As nice as it is to see white people reading ‘The Autobiography of Malcolm X,’ as a parent, if your white suburban kid finishes [that book] and starts running around in a turban and a cloak, you need to have a serious chat with Johnny. When Johnny goes on the Internet pretending he’s black, you need to have a little identity discussion. And when Johnny sells his collection of rap music because he’s convinced that the Quran prohibits music, that’s a clear warning sign. You always worry when your kid sells his album collection.
You’re saying you can understand how easy it is for a youngster to be led astray by religion or ideology?
When I was a young man, at an earlier time in this country’s history, I was a member of a paramilitary, right-wing religious group called the Jewish Defense League. I emigrated to Israel, but happily I realized that the Zionist dream that I had embraced was in fact a nightmare for the Palestinian people. Equally happily, I took the admonition “Make love, not war,” seriously. But a number of people I was with in the Jewish Defense League became terrorists. Had things gone a little bit differently, I too could have ended up in a similar position, involved in something way over my head in another country.
Did Walker’s isolation, physically and mentally, contribute to his loss of perspective?
I think so. If you read his e-mail postings [after he converted to Islam at age 16] they’re sort of pathetic. No drinking, no drugs, no sex, no music. Come on, you’re a teenager!
Could Walker improve his situation if he cooperates with U.S. authorities and shares any information he has about Al Qaeda and the Taliban?
Assuming Mr. Walker has some beans to spill, the government may very well decide to work out some sort of plea bargain with him. The one glitch is, the snitchocracy, as it were, the system of rewards for informers, perversely saves the biggest rewards for the worst criminals. The more you know, the more people you kill, the more confederates you have, the more you have to bargain with. It’s usually the poor schlub at the bottom, the mule in the drug program, the button man in the mob hit, who has very little to bargain with. But one of the things that would be interesting to know, is how on earth did this guitar strumming, white boy suburbanite, Cat Stevens-wannabe manage to infiltrate the Taliban, a task that is supposedly so formidable that not even the best of the Central Intelligence Agency has been able to achieve it over the past six years?
I just wonder how different things would have been had Johnny Taliban been an African American from the inner city, rather than an all American suburban white boy. I wonder if the people who are sympathetic to him would have been as sympathetic if he had been black. I wonder if he’d even be alive today.
He may have an affluent background, but aren’t people still calling for blood from the “traitor”?
My perception is that if the government decided to shoot him, the American people would be OK with it, and if they decided to smack him on the behind with a hard wooden paddle, the American people would be OK with that too. My feeling is the American people don’t really care as long as he’s not able to sell his life story and become a millionaire.
Are we looking at that extreme of a range in possible punishments?
Theoretically he could face the death penalty for treason or for murder. That’s extraordinarily unlikely to happen. The most likely thing to happen is he’ll make a deal with the government, he will serve some jail time, as little as a year or two, maybe a little more [and] the government will pronounce itself satisfied with his cooperation.
What crimes could Walker be charged with?
There are a wide range of options, none of which are clear cut from a prosecutorial standpoint. The first response that people have is to say charge him with treason. Legally, treason is very difficult to prove. Treason is the only offense specifically described in the Constitution, and it requires the testimony of two eye witnesses, or a confession in open court. The framers of the constitution set a very high threshold for treason prosecutions because of the experience of American colonists being arrested and dragged off to England. In addition, the legal authority for charging someone with treason in an undeclared war is unsettled. But most fundamentally, you would have to prove beyond a reasonable doubt that John Walker Lindh knew that he was fighting against the United States of America and American soldiers, and not simply fighting against members of the Northern Alliance, with whom the Taliban had been at war for years.
So two witnesses saying “We saw him with a gun, he was fighting with the Taliban,” wouldn’t be enough to convict him of treason?
No. Walker had joined up with the Taliban well before Sept. 11, and it’s not at all clear what information he possessed, or what he believed about the foe he was fighting, if he was fighting at all. We have heard he was captured with a Kalashnikov, but to date there hasn’t been any gunshot residue tests performed to indicate whether it had been fired. If you’re going to make the argument that he was shooting at American soldiers, you first of all have to prove there were American soldiers there, and then you have to prove that he knew he was shooting at them. And we just don’t have those facts. At this point there is no proof that he injured any Americans, or attempted to injure any Americans, or even knew Americans were combatants. So treason becomes a very difficult charge.
Could his U.S. citizenship be revoked?
It’s true that you can lose your citizenship by taking up arms in a foreign army, and certainly opening fire in Afghanistan against U.S. forces, if that’s proven, is a fairly muscular form of non-allegiance. But this is not something they take lightly. The courts as a rule have been extremely reluctant to take away American citizenship from a native-born American. It happens very rarely. Based on the facts as they are now known, it is unlikely that a court would consider his conduct to be sufficiently definite as to allow him to be stripped of his citizenship.
Could he be tried in a military tribunal?
There are so many legal and political problems standing between Mr. Walker and the military tribunals that I don’t think there is either the desire or the legal basis to try him in one, and I don’t think he will be. It’s extraordinarily unlikely that the Justice Department would attempt to strip him of his citizenship, a process that could take years, and then attempt to try him–a former U.S. citizen–before a military tribunal.
Some reports have alleged that Walker said that he was a member of Al Qaeda, and not just the Taliban. If that is true, would it affect his case?
Theoretically then he could be tried under the terms of the executive order [in a military tribunal] after he was stripped of his American citizenship. But it would be a highly dubious proposition.
Is mere membership in Al Qaeda enough to prove that he had a conspiracy to kill Americans?
Mere membership in Al Qaeda is sufficient to place you under the jurisdiction of military tribunals if you’re not an American citizen. But under American law, even known membership in Al Qaeda is not of itself a criminal act. We’ve named Al Qaeda in lots of lawsuits, but that doesn’t make it a criminal act. In the United States, since the abolition of the anti-Communist laws of the 1940s and ’50s, mere membership in an organization is not a crime under American law.
What other charges besides treason could Walker face?
There is the crime of sedition, and seditious conspiracy. And those charges do not require two witnesses, but they are very similar to treason. The formal definition of sedition is violently undermining the government of the United States, or attempting to violently overthrow the government of the United States. Sedition is a much more difficult charge to prove in the context of Mr. Walker’s participation in the prison revolt in Mazar-e Sharif. There’s no evidence yet to indicate that he was in custody pursuant to American authority.
Even though he was interviewed by at least one CIA agent?
There were two CIA guys who were interviewing him, but they [presumably] didn’t identify themselves as Americans or CIA agents. They were two guys who were speaking in English. With American accents though?
Well, I don’t know. And I don’t know [Walker’s] ability to divine an American accent as opposed to a Canadian accent or the accent of an Afghan who spent his life living in America. And indeed, the administration sort of washed its hands of responsibility for the murders of the Taliban prisoners in the course of the prison uprising….
More simply, he can be charged with conspiracy to murder Americans. He can be basically charged as a terrorist. That would be the most straightforward offense, but again you would have to prove that he knew he was shooting at Americans, that he conspired to kill Americans, that by joining the Taliban he wanted to kill Americans…
It’s [also] possible you could charge him with a violation of The Neutrality Act, which is the act that generally speaking prohibits Americans from planning foreign military expeditions with countries with whom the United States is not at war. You could make the argument that before Sept. 11, by going to Afghanistan to join the Taliban, [Walker] was in violation of the Neutrality Act. But you’d have to prove that he planned to join the Taliban military while he was in the United States.
What else?
There are probably other minor charges that a creative lawyer can think up, but remember since most of what Mr. Walker did, he did in another country, it’s hard to prosecute him under American law, except under those provisions that are extraterritorial. For example, it’s illegal in the United States to carry a fully automatic Kalashnikov unless you have a permit. Right? Obviously. But you can’t prosecute him for possession of an unregistered fully automatic Kalashnikov because he didn’t do it in the United States.
