Washington Post
December 20, 2001

Walker's Case Poses Novel Legal Issues

By Charles Lane

WASHINGTON -- The U.S. military has the right to interrogate detained American al Qaeda suspect John Walker without a lawyer present, but any information it gathers may not be admissible against him in a criminal case later, legal analysts said yesterday.

Under the Geneva Convention, U.S. personnel can ask a captured enemy combatant anything they want as long as they refrain from intimidation or coercion, analysts said. But the Fifth Amendment, as interpreted by the Supreme Court in the famous Miranda case, might keep his statements out of court unless Walker, now held on board the USS Peleliu, was informed of his right to have a lawyer present and knowingly waived it.

"Miranda probably kicks in around the time he was transferred to the ship, which is U.S. territory," said professor William Stuntz of Harvard Law School, an expert on criminal procedure. "If he invoked it and they don't give him a lawyer, the government is running some risk."

Walker, 20, who has said he converted to Islam at 16 and later made his way from California to Osama bin Laden's training camps in Afghanistan, faces possible charges up to and including treason, which carries the death penalty.

Yet his case poses novel legal issues in part because it falls on both sides of the line that separates military action from criminal law enforcement.

It is unclear whether Walker has been read the familiar "right to remain silent" warning required by Miranda rights or, if so, what response he made. A lawyer hired by his parents, James Brosnahan of San Francisco, has been demanding access to Walker, so far without success.

Earlier this week, Brosnahan issued a brief statement expressing disappointment that Walker's parents had not been allowed to meet with their son and suggesting that Walker had an immediate right to counsel.

"He has now been held in custody and reportedly subject to ongoing interrogations by various government agents for 16 days without any access to an attorney and without the ability to communicate with his family," Brosnahan said.

The issue of Walker's rights came up at yesterday's White House media briefing as reporters asked press secretary Ari Fleischer how a U.S. citizen in obvious legal jeopardy could be held in custody for so long without seeing a lawyer.

Citing the logistical difficulties of finding lawyers in a faraway country during war, Fleischer said President Bush "is more than satisfied that all rights are being fulfilled and that the Department of Defense and the attorney general are doing the appropriate thing in accordance with the Constitution and given the on-the-ground practicalities and realities of the situation with Mr. Walker."

Insofar as Walker is a detained enemy combatant, the Geneva Convention gives his U.S. military captors the right to ask him anything as long as they refrain from intimidation or coercion, analysts said. Walker is not required to provide anything but name, rank and serial number -- to the extent such terms apply to an irregular force such as al Qaeda -- but not forbidden to say more.

As a "battlefield detainee," the term the Bush administration has used to describe Walker, "he has no more right to a lawyer than any other al Qaeda member," said Ruth Wedgwood, a Yale Law School professor who specializes in international law. Such information could be used in military commissions that might try other terrorism suspects, Wedgwood added.

But as a citizen, Walker cannot be tried by a military commission because Bush's order establishing such commissions excludes American citizens. And once the government prosecutes him in federal court, his lawyers could move to suppress all or part of his statements since his arrest.

Whether they would win that argument in court is another matter. The courts have sometimes recognized exceptions to defendants' rights against self-incrimination or unwarranted searches in cases where the government can claim a special need or emergency.

In a 1984 case, the Supreme Court held that New York police officers did not need to read a suspect his rights when asking him where he had hidden a gun because the situation posed an imminent danger to public safety.

U.S. officials could argue that the danger posed by lingering al Qaeda forces, possibly armed with weapons of mass destruction, raised the ultimate threat to public safety, obviating the need to read Walker his rights.

But Walker is now far away from the battlefield, making the threat to the forces who detain him more remote and their need for swift, emergency questioning less pressing.

"There'd be a healthy brief on that on both sides," a Justice Department official said. "You'd need the Supreme Court to decide that."

A New York federal district judge ruled last year in the case of Wadih el-Hage, a U.S. citizen and alleged al Qaeda operative charged in the East Africa embassy bombings, that U.S. authorities did not need a warrant to search el-Hage's house in Kenya on the grounds that the search was for intelligence-gathering purposes. The ruling is being appealed, said Joshua Dratel, el-Hage's lawyer.

"The government holds the high cards [in Walker's case] because the courts are tolerant of government action for intelligence or national security purposes," Dratel said. "There is a large amount of discretion afforded for national security, particularly outside the U.S."

Copyright 2001, Washington Post Company. All rights reserved.

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