When Attorney General John Ashcroft announced the indictment of John Walker Lindh, he said the rights of the 20-year-old "American Taliban" had been "carefully, scrupulously honored." But inside the Justice Department, not everybody was convinced. Even as prosecutors began preparing criminal charges against Lindh last December, the department's own ethics advisers were raising red flags.
Internal e-mail, obtained by Newsweek, show that two Justice Dept. lawyers concluded that FBI plans to interrogate Lindh without the presence of a lawyer would violate the department's ethical guidelines and "is not authorized by law." When Justice lawyers later learned the interview had taken place anyway, they worried it might not be usable in court.
The e-mail also shows that some Justice lawyers viewed the evidence against Lindh as less serious than public portrayals of him as a devotee of Osama bin Laden. "At present we have no knowledge that he did anything other than join the Taliban," one wrote. The e-mails were turned over under seal by prosecutors last March to the judge overseeing Lindh's case. But the judge, T. S. Ellis, ruled the e-mails were internal "work product" and didn't have to be shared with the defense.
Lawyers say the e-mail point to one of the central issues in the case: interrogations of Lindh by FBI agent Christopher Reimann on Dec. 9 and 10 at a Marine base in Afghanistan. Prosecutors have acknowledged that Lindh's confessions to Reimann, along with earlier ones to military interrogators, are the basis for their 10-count indictment charging Lindh with conspiring to kill U.S. nationals and aid the Taliban and Al Qaeda.
The e-mail shed new light on these interviews. On Dec. 7, a Justice counterterrorism prosecutor, John De Pue, queried an internal ethics unit called the Professional Responsibility Advisory Office on whether Lindh could be questioned by the FBI, given that Lindh's father had retained a defense lawyer, James Brosnahan. (Brosnahan had been sending repeated faxes seeking access to Lindh.) "I consulted with a Senior Legal Advisor here Ö and we don't think you can have the FBI agent question Walker," lawyer Jesselyn A. Radack wrote back that day. But the following Monday, the lawyers learned that an FBI agent "went and interviewed Walker over the weekend." Radack noted: "The interview may have to be sealed or only used for national security purposes"ónot for a criminal case. "Ugh," replied De Pue, adding in an e-mail 17 minutes later: "If what you're telling us is trueóand I am sure that it isóthe FBI needs to be alerted at once."
Some outside experts contacted by Newsweek say the Justice lawyers may have been overly cautious: The ethical guidelines at issue, imposed two years ago at the direction of Congress, bar Justice Department prosecutors from directly approaching criminal suspects who are already represented by defense counsel. But, experts say, they don't necessary govern the conduct of FBI agents. (One central question is whether FBI agent Reimann was interrogating Lindh on his own or under the supervision of Justice prosecutors in Washington.) In any case, the concerns of the Justice lawyers abated 10 days later when they got back an FBI report that Lindh was read his Miranda warnings and had waived his rights.
But De Pue warned there might still be a "residual issue" as to whether there was a "coerced confession." Lindh's lawyers have now raised the same issue, arguing in new court papers that Lindh was "sleep deprived," "in pain"óand was never told his family had retained a lawyer. A Justice official said the FBI didn't have to tell him because the lawyer was hired by Lindh's father, not Lindh. "Our position is that John Walker Lindh did not have representation at the time," the official said.
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