New York Times
December 29, 2001
It Won't Be Easy to Convict John Walker
By Leon Friedman
Hempstead, New York -- Now that the Justice Department has listed the charges it is considering against John Walker, the 20-year-old American from California who joined the Taliban, it is possible to draft the outlines of a defense strategy. Against these charges, at least, Mr. Walker may be able to put on a surprisingly strong case in federal court. Making his case in the court of public opinion is another matter.
Although it is still possible prosecutors will decide to try Mr. Walker in a court-martial, it is highly unlikely. In a ruling handed down shortly after World War II, the United States Supreme Court set very strict rules for people in his position being tried in courts-martial.
The Justice Department has identified six crimes possibly committed by Mr. Walker: treason, murder of a United States government employee (Michael Spann, the C.I.A. agent who interrogated Mr. Walker and was later killed when the Taliban prisoners at Mazar-i-Sharif revolted), foreign murder of a United States citizen, foreign murder of a United States citizen for the purpose of terrorism, conspiracy to commit any of the above acts, and providing material support for terrorists.
Probably the most difficult charge to prove is treason. The crime is defined in the Constitution as "levying war" against the United States or giving "aid and comfort" to its enemies. The Constitution also requires that there be "two witnesses to the same overt act" or a "confession in open court" before a person can be convicted.
It would be a stretch to apply the treason provision to John Walker. Did he "levy war" against the United States by fighting against the Northern Alliance, which only later became an ally of the United States? Did he violate the law by being present in Afghanistan with a fighting group of non-Afghans after our October air attacks on the Taliban? Are the Taliban an "enemy" within the meaning of the treason clause, or does the term cover only countries against which we are formally at war? Are there two witnesses to any overt act? Will he confess in open court to any act? (A confession to his interrogators will not do.)
The charges relating to the killing of Michael Spann, or a conspiracy to kill Mr. Spann, are also questionable, since there appears to be little if any evidence that Mr. Walker had any role in the uprising that led to Mr. Spann's death. In an interview aired on CNN, Mr. Walker claimed that he was in the basement at the time and told his fellow prisoners that everyone should surrender to the Northern Alliance after it began flooding the building.
The charge of providing material support to terrorists is the one that the Justice Department probably feels most confident about. It focuses on Mr. Walker's prior training with Al Qaeda rather than on any specific acts he may have committed during the prison uprising. In 1994 Congress passed a law against providing material support to terrorists. Support, under the law, includes participating in training exercises with terrorists.
But there is still a question about whether this law applies to Mr. Walker at all.
Until recently, the law against providing material support to terrorists applied only to acts committed in the United States. In October, Congress passed and the president signed a provision amending the law to include acts committed outside the United States.
To make the charge of providing material support to terrorists stick, the government must prove some difficult points. It must show that all the non-Afghan troops working with the Taliban were in fact members of Al Qaeda (which, after all, does not have formal membership rolls or uniforms). Then the government must show that at least one goal of the non-Afghan fighters in Afghanistan was to carry out a terrorist act prohibited by the law. Finally, it must offer evidence that Mr. Walker was in training with his group as they wandered around Afghanistan evading American bombs.
It may be hard to make a case against him on this charge given what appears to have happened: Mr. Walker and his group hunkered down, fought against the Northern Alliance and then looked for a place to surrender. As Robert Pelton, who interviewed Mr. Walker on CNN, commented: "He didn't start this war fighting Americans. He simply ended up with Talibans being attacked by Americans." There is no evidence that we know of that he shot at any American soldiers. His unit was in Kunduz, miles from Kabul, when the bombings began, and its members walked 100 miles to surrender near Mazar-i-Sharif.
But what about Mr. Walker's prior actions in the training camps, financed by Osama bin Laden, where non-Afghan members of the Taliban learned how to use explosives and poisons? Because the law was not changed until October, his prior actions would not have been in violation of it. The Constitution prohibits punishing people for acts which, at the time they were committed, were not illegal.
There remains, of course, the court of public opinion. Former President George H. W. Bush has said that a fitting punishment for Mr. Walker would be to "let him go wandering around this country and see what kind of sympathy he would get."
The current President Bush, in contrast, described Mr. Walker as
a "poor fellow" whose search for spiritual meaning had ended in
disaster. Perhaps Mr. Walker's prosecutors will be equally rational
about this unusual case.
Leon Friedman is a professor at Hofstra Law School and the author of "The Law of War: A Documentary History."
Copyright © 2001, New York Times Company. All rights reserved.
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