Washington Post
December 21, 2001

Va. Trial on Terror-Related Charge Sought for Walker

By Brooke A. Masters and Mike Allen

The Justice Department has recommended that the American caught with al Qaeda and Taliban forces be tried in Virginia on charges of providing assistance to international terrorists, but President Bush has not decided whether to approve the suggestion.

A senior administration official said Bush's decision would come next week at the earliest. The official expected that Bush would get additional recommendations from the CIA and the Defense Department and would then consult members of his National Security Council.

"He hasn't heard enough about this yet," the official said. "He wants to hear more."

The story of John Walker, 20, has fascinated the public and raised complicated questions for the U.S. government since he was captured in Afghanistan last month. Walker, who lived in the Washington suburbs before moving to California, has said in media interviews that he strongly supports the Taliban's holy war.

But government lawyers have struggled to figure out the best way to prosecute Walker -- who converted to Islam and made his way to Afghanistan via Pakistan -- for his alleged anti-American activities. Other possible charges that have been mentioned include treason and harming a federal officer. The presidential order authorizing military tribunals does not apply to Walker because he is a U.S. citizen.

Under the Justice Department recommendation, Walker would be charged with providing material support to terrorists, a charge that on its face seems aimed more at those who fund and harbor terrorists than at those who fight against U.S. soldiers, sources said. But some legal analysts argue the definition of support is broad and could include volunteering for a terrorist organization.

In addition, the penalties for supporting terrorism were recently increased as part of the massive anti-terrorism law enacted after the Sept. 11 attacks. The maximum penalty is now life in prison if a death resulted from the offense.

By comparison, a charge of assaulting a federal officer would be hard to prove in court if the evidence showed that Walker's activities put him across the battlefield from Northern Alliance and other Afghan troops, rather than the U.S. military.

The CIA may have particularly strong views on the matter because Johnny "Mike" Spann, the CIA officer killed outside Mazar-e Sharif, interviewed Walker shortly before his death in a prisoner revolt.

But CIA spokesman Bill Harlow said the agency has not offered an opinion. "Our views haven't been solicited, and we're fine with that," Harlow said.

Victoria Clarke, the Pentagon's chief spokeswoman, said a "fairly intense interagency dialogue" is taking place about how Walker should be tried. But she declined to comment on the Pentagon's position and said no final decision had been reached.

Treason carries the death penalty. But applying the statute to Walker presents legal difficulties, government sources and legal analysts said. First, the standards of proof are high: The U.S. Supreme Court requires two witnesses to prove a treasonous act -- something that might be hard to find in Afghanistan. Second, Walker's attorneys might be able to argue that because there has been no formal declaration of war and their client joined the Taliban before Sept. 11, he did not directly betray the United States.

James Brosnahan, a lawyer hired by Walker's parents, did not return a telephone call requesting comment. He has tried, without success, to gain access to Walker, who is being held on a U.S. Navy ship as a "battlefield detainee" under the Geneva Convention.

Under the new anti-terrorism law, a person can be tried for providing support to terrorism in the federal jurisdiction where the destruction occurred, the state where the suspect last lived, the District of Columbia, or the state where the suspect is either arrested or is brought after being captured overseas.

If Walker is to be tried in Virginia, federal officials probably will fly him to Dulles International Airport or one of the military bases in the state, lawyers said.

Yesterday, the Senate took action on another terrorism case by approving a bill that would allow the families of the Sept. 11 victims to watch the trial of Zacarias Moussaoui, the first man indicted on charges related to the attacks. The trial would be broadcast on closed-circuit television in the cities most affected by the airliner crashes.

Staff writer Vernon Loeb contributed to this report.

Copyright 2001, Washington Post Company. All rights reserved.

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