Posted on 12/27/2001 11:21:51 AM PST by PhilDragoo
Well, the Boss has asked for options about how to deal with Walker.
The good part is that he's made it clear that I'm to ignore political considerations. Apparently, Rove and the other political mechanics in the White House aren't going to have any input into this. Maybe Rumsfeld, because of all the other prisoners we have, but not anybody else. Only the President. And the other day, he said Walker faces a grim future.
The bad part is that he may not like what I'm going to tell him, so we better be very sure we're on solid ground and there are no leaks before he makes up his mind. Or I'll have painted him into a corner. Not a good idea.
Even before last week, the facts were pretty clear. Since then, we've learned that Walker was definitely Al Qaeda. And the president said so. No question Walker knew who he was with, and what he was doing. Newsweek just reported that he was tight enough with Al Qaeda to live in a secret camp frequented by Osama himself. Where one of the hijackers trained. Walker met with bin Laden at least once. He opted to train as a fighter rather than as a martyr. He admitted membership in Ansar, and that it was funded by bin Laden. Solid facts!
Let's start with the rule-outs.
He's an American citizen, so no military tribunal. If we want to go against his citizenship, that's way down the road after all the criminal proceedings. But it's worth thinking about.
No court-martial, because he wasn't in our army.
If he's just a prisoner of war, sooner or later he gets to go home. Good that Don agreed not to call Walker a POW. And he wasn't in uniform. So, he's not a POW. Maybe some Geneva Conventions problems here, too.
No war crimes, either. No Nuremberg.
Terrorism has to be within the United States. Bad facts. No help there.
Forget what we charged the Rosenbergs with. There's no Espionage Act here.
There's a statute prohibiting enlistment to serve against the United States, but that's only three years tops.
Lying to a federal officer is a felony under 18 U.S.C. 1001, but that's only five, tops.
Seditious conspiracy and advocating overthrow of the US government don't apply.
No matter what he tells us that might help, he can't go free.
No matter what those talking-heads lawyers say on TV, there's no Miranda rights problem. Not for an enemy detainee interrogated halfway around the world by American troops and CIA agents. I'd like to ask Gerry Spence if Axis Sally or Tokyo Rose were entitled to Miranda warnings. He'd probably say yes.
So where does that leave us?
Let's start with treason.
I'm amazed at how wrong everyone outside the Justice Department is about treason. Especially those law professors. Where does the media get them? Virtually every one of them deserves an F. All you have to do is read eight cases, three in the Supreme Court and five in Courts of Appeal. Treason hard to prove? Ridiculous. Can we get an indictment on whether he intended to betray, an overt act, aid and comfort, with two-witness proof? Of course we can. Could a jury convict? Sure. No question about the acts. Look at everything he did. They can infer intent from the act. Aid and comfort is easy. After all, he fought with Al Qaeda, stonewalled Spann, was there when he was killed. We can also charge him with conspiracy to commit treason under 18 U.S.C. 371. All we need for that is an agreement to adhere to the enemy giving aid and comfort, and any kind of an overt act, even a legal one.
No one's talking about 18 U.S.C. 2332. You murder an American outside the US, you can get up to life or even death. If you conspire, it's up to 20 years. I'm intrigued by the Spann killing. We need to get more facts from Defense and CIA, but we know that Spann interrogated Walker, then the riot broke out, Walker was wounded and Spann killed. It may be that Walker was a principal, an aider and abettor, or a conspirator. If the facts are there, I'd go with that. Especially because if we charge treason, a jury could go with the homicide instead.
My staff leans toward charging Walker with a single count of providing material support to a terrorist organization under 18 U.S.C. 2339A. But I don't like it. It's only worth ten years, maximum. Worse, the term material support hasn't been authoritatively defined by the courts, and I'm not sure that the statutory definition in 18 U.S.C. 2339B fits Walker. It seems to me that Walker didn't provide anything material to the Taliban or Al Qaeda. It was the other way around. And I don't see how conspiracy or aiding and abetting helps us here. Also, it doesn't give us much bargaining power with Walker. If he's just looking at ten years, Brosnahan might advise him to throw the dice with a jury. Poor kid, and all that devil-made-me-do-it nonsense. But if Walker's looking at death or a good many years, maybe the ten would be attractive.
Procedurally, we bring him back by air into Virginia, and we have him in a good district to try a treason case. Tough juries. That's why we have Moussaoui there.
Let's see what the staff recommends, but that's how I see it now.
His extensive research and commentary on law and treason inform his coming book AID AND COMFORT: JANE FONDA IN NORTH VIETNAM coauthored with Erika Holzer.
It is herein shown that actions have consequences, and that the actions of Taliban John have consequences measured in sentences determined by statute.
In my fanciful imagination I pictured Taliban John falling overboard on his return voyage to CONUS. His actual fate under law may convince him that would have been preferable.
You want a "tough jury?" You want a "good district" to try a case? Extradite him to India for his admitted terrorist activities in Kashmir. They have a better "legal" case. If johnny wants to play war with a foreign country, let him be punished with their jails. A fittting punishment, with the bonus of saving us from certain excessive media coverage and commentary if were tried locally.
He makes only one mistake in his analysis, but it's early on and sigificant. He assumes that the US cannot "go against [Walker's] citizenship" until "after the criminal proceedings are over." That's not so.
The Supreme Court noted in the Quirin case in 1942 that certain acts can forfeit one's US citizenship. (One of the eight German saboteurs whose military tribunal trials were tested in that case, claimed to be an American citizen. The Court said that was irrelevant, because his acts would have forfeited his citizenship.) So, there is a better alternative than this Professor lists. If Walker's citizenship is yanked, first, then he can be tried in a closed, non-circus, military tribunal atmosphere for serious charges possibly leading to the death penalty.
With that one correction, this is a good, no-nonsense article.
Congressman Billybob
He took arms against his country. Charge him with the maximum possible and pursue the maximum penalty.
I see by the copyright of your photo that Hamilton, New York would indeed be a perfect venue for our Johnny.
We'll trump his Oprah defense involving his father dressing up in women's clothing, hence his own propensity for robes.
Using Occam's razor, TJ's likely complicit in the brutal murder of Mike Spann.
Using that razor, we'll put his head in a jar on Al Jazira.
Gotcher seventy-two virgins right here, martyr-boys.
So is it your concern that such a hearing, wouldn't return a finding to revoke? I read my passport, and it explicitly warned of certain acts which would constitute grounds for losing one's citizenship.
Your argument is powerful.
Spann talks to TJ.
TJ stonewalls Spann, blabs to his gaggle of friends.
TJ's gaggle of friends beat and bite Spann to death.
Did I mention in the intro that Erika Holzer wrote Eye for an Eye?
John Walker Lindh Talibanus, meet Hammurabi.
All the flesh on your talibones are belong to us, John.
If the government is going to use the min\litary tribunal route, they will have to conduct such a citizenship hearing in advance of the trial proper on the charges.
Did you find the Professor to be as engaging and no-nonsense as his article makes him appear?
Congressman Billybob
"Shot trying to escape" has always been near and dear to my heart. I hate being taxed for circus trials and all-expense-paid vacations for Charles Manson, the Menendez brothers, etcetera.
A retired Democrat teacher from Harkin, Iowa has suggested "early release" for these incorrigibles, where "early release" is code for "shot trying to escape" which is code for being slower than a speeding bullet.
Jeffrey Dahmer was beaten to death while cleaning a toilet. JOHN SNUFFED BUFFING JOHN could be the New York Post headline.
After the due process of giving the dispatcher the pack of smokes.
He knew his teammates had grenades, but didn't tell Spann. Then his teammates killed Spann.
I'm not a lawyer and I don't play one on teevee, but your logic is rock solid.
Susan Rosenberg participated in the Brinks robbery in 1981 which killed a Brinks guard and two police officers. She was sought and captured with fourteen firearms and six hundred forty pounds of explosives. Clinton pardoned her after Kuntsler and Chomsky crusaded for her. A similar array of idiotlogical actors is likely in Walker's case.
Maybe Elton John will write him a song, "Scandal in the Lindh".
While there has been considerable speculative discussion of various charges against John Walker- now being held on the American vessel Bataan in the Arabian Sea - an indictable offense that has been virtually overlooked is the one that may, in the end, cause Taliban John the most trouble. Especially if the Bush Administration doesn't indict Walker for treason.
Title 10, Section 904, of the United States Code (Uniform Code of Military Justice) is entitled "Aiding the Enemy." The section provides that: "Any person who (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) . . . knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct."
Even though this statute has not been construed much by the courts, let alone by the Supreme Court of the United States, arguably it's applicable to Walker's conduct.
We know that he trained with al-Qaeda in at least two terrorist camps, that he admitted knowing the camps were funded by bin Laden, that he fought with al-Qaeda, that he participated in two prison uprisings involving US forces, that he was in proximity to the murder of CIA agent Mike Spann, and that he claimed to have knowledge of a post-Ramadan biological attack on the United States. And this is just what we know; doubtless, American authorities by now know much more.
Turncoat Marine Bobby Garwood was convicted, in the mid-1980s, of the Section 904 crime by a Marine Corps court martial for his reprehensible conduct with the Viet Cong in South Vietnam. (See United States v. Garwood, 16 MJ 863, NMCMR 1983).
However, there are as yet unanswered questions about using Section 904 against John Walker.
Garwood was an active duty Marine when he committed the acts for which he was later convicted. So, does Section 904 apply to Walker who, though an American citizen, was not at the time of his acts in any United States military service? The answer is probably "yes" for two reasons. First, another federal statute, 10 U.S.C. 802, provides that: "The following persons are subject to" the Uniform Code of Military Justice [which would include Section 904]: . . . (9) Prisoners of war in custody of the Armed Forces. . . ." While Central Command has been characterizing Walker as a "military detainee" (whatever that semantic description is supposed to mean), the fact is that the former al-Qaeda fighter - taken from the field in armed combat by allied forces, and doubtless American troops of one kind or another - is a prisoner of war. Accordingly, Section 802 would seem to apply. Second, Section 904 has been construed as not being limited only to persons subject to the Uniform Code of Military Justice. (See Duncan v. Usher, 23 MJ 29, CMA, 1986).
Can it be argued that al-Qaeda was the "enemy"? Not only can it be argued, it is undeniable.
Can it be argued that Walker aided or attempted to aid al-Qaeda with at least "other things"? If not, what was he doing with them: training, marching, fighting, rebelling, and perhaps even killing, or conspiring to kill, an American?
Can it be argued that Walker knowingly harbored or protected or gave intelligence to al-Qaeda "either directly or indirectly"? As noted, at the very least, he marched, fought, and rebelled with them.
Can it be argued that Walker had "intercourse" with al-Qaeda "either directly or indirectly"? Again, we need only look at Walker's conduct with them.
If any of these questions could be answered affirmatively, federal prosecutors have sufficient evidence to get a Section 904 case against John Walker to a jury.
Could Walker get the death penalty? Yes. The statute expressly provides for it.
Could Walker be tried, not by a court martial, but instead by a military commission? Yes, the statute expressly provides for that forum, and President Bush's Executive Order expressly provides for the creation of military tribunals. However, it's important to understand that if the administration decides to go this route, it would not be violating the Bush Order because federal law - Section 904, pre-existing law - already allows an American citizen to be tried by a military tribunal for the crime of "aiding the enemy." Thus, while Walker could be tried for a Section 904 "aiding the enemy" violation, he could not be tried for any crime (i.e., terrorism) contemplated by the President's Executive Order - although, under Section 904, Walker could be tried by a military commission constituted under that Order.
This assessment of the utility of a Section 904 charge against John Walker should not be allowed to obscure the other possible charges against him, including treason, complicity in the murder of Mike Spann, and providing material support to the enemy - all of which could, and may, be brought against Walker. But in the mix, if there's a sleeper crime to keep an eye out for, it's the charge of "aiding the enemy."
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