A federal judge warned Monday that if the government’s national security concerns prevent John Walker Lindh’s attorneys from interviewing detained witnesses who might help clear him, the Justice Department might have to drop its case against the man captured with Taliban fighters.
At a hearing in Alexandria, Va., U.S. District Judge T.S. Ellis III also told the defense he did not think the Constitution’s fair-trial guarantees require the government to allow Lindh’s lawyers to go to Guantanamo Bay, Cuba, to interview 14 suspected Al Qaeda and Taliban fighters being held there.
Ellis suggested that a videoconference might be a reasonable compromise between Lindh’s right to exculpatory information and the government’s need to gather as much anti-terrorism information as possible from the 384 detainees at Guantanamo Bay.
He gave both sides until May 28 to work out a deal. At that point, he said, he will rule on the defense request for face-to-face interviews.
Lindh, 21, arrived at the half-hour hearing with neatly trimmed hair and, for the first time, thick-rimmed glasses that further distance him from the unkempt, bearded man captured in northern Afghanistan late last year.
The hearing gave the first clear indication of how Ellis intends to handle the complicated national security concerns that are likely to dominate Lindh’s trial later this year. The Californian is charged with conspiring to kill Americans abroad and aiding terrorist groups. He faces a life sentence if convicted.
His lawyers contend he never intended to harm Americans and was mistreated by U.S. personnel before he gave several statements to the FBI that form the bulk of the case against him. They are seeking classified information, interviews with government employees and access to the detainees at Guantanamo Bay to bolster their claims.
Assistant U.S. Atty. John Davis told Ellis that the Defense and Justice Departments have not been able to agree on what kind of access to Guantanamo the government would allow.
Ellis replied that although he sympathized with government concerns, he would not allow national security to override Lindh’s constitutional rights.
“The government has national security interests. … They’re interviewing [the detainees] for homeland security matters,” Ellis said. “I understand that the government faces significant problems, but it still comes down to a criminal prosecution where certain things have to be done in certain ways.”
If national security concerns prevent that from happening, Ellis said, “the government may not be able to proceed against this defendant.”
Defense lawyers have asked to meet with 78 government employees, including intelligence personnel, and sought to subpoena more than 50 who turned down their requests for voluntary interviews.
