Military

DATE=02/25/02

TYPE=INTERVIEW TRANSCRIPT

TITLE=MULLER/TALEBAN

NUMBER=3-24

BYLINE=TOM CROSBY

DATELINE=WASHINGTON

INTERNET=YES

CONTENT=

/// Editors: This interview is available in Dalet under SOD/English News Now Interviews in the folder for today or yesterday ///

HOST : American Taleban fighter John Walker Lindh was formally charged Thursday with conspiring to kill U-S citizens abroad. The evidence against him includes statements he made to F-B-I interrogators in December. Outside the courtroom, his attorney maintained his client did not have legal counsel present when he was being questioned, but the government says it has a document he signed that waived legal representation when the FBI interviewed him.

University of North Carolina law professor Eric Muller tells News Now's Tom Crosby the controversy raises some very interesting legal issues:

MR. MULLER: Many people have probably heard of the famous Miranda warnings, the requirement the Supreme Court created years ago that a person who is in what is called "custodial interrogation," being questioned in custody, the requirement that that person be given advice of their rights to remain silent, their right to counsel, the idea that anything they say will be used against them in court, and so on. So one of the claims is that when he was questioned by the FBI, which it seems it was done at least as early as December 9th, that he would have been entitled, since he was in custody and was being questioned, he would have been entitled to be informed of his right to remain silent and his right to an attorney.

The indication is that he was in fact given that instruction and that he waived that right. At least that is what the Attorney General has told us. And the complaint that was filed against him also recites that he waived, in writing, his right to counsel.

It turns out, today (Thursday), his privately retained lawyer is saying that, from the moment he was apprehended, he was requesting a lawyer and that request was not honored. So there will be a factual question here for the judge, early in the proceeding, to resolve as to whether in fact this waiver that he signed is real, whether it is authentic, and whether it was freely and voluntarily given.

MR. CROSBY: Could this result in the charges being reduced or dropped?

MR. MULLER: Well, those are two separate questions actually. I don't think they will result in the charges being dropped. If a judge were to conclude that he should have received Miranda warnings and didn't, or that he was actually seeking counsel and it was denied him, then the statement that was obtained from him would be inadmissible under Federal constitutional law. And as I read the complaint, it sounds like they are planning on building the case against him largely on his own words. So if his statement were to be suppressed from evidence and unavailable to the jury, I would think that would be a devastating blow for the government, and they might be compelled to offer some kind of a significantly reduced charge.

Quite honestly, it seems likely to me that if they say they have a written waiver of his Miranda rights that he signed, it is very unlikely that a court is going to set that aside on the basis of his testimony that it was not freely given.

MR. CROSBY: But does Miranda apply when someone such as John Walker Lindh is apprehended overseas and is being queried in another country?

MR. MULLER: Yes, because he is an American citizen. There is the United States Supreme Court case, called Reid v. Covert, that makes very clear that American citizens abroad are entitled to the same level of protection as American citizens domestically. So there is no question that Miranda would apply in the context of a criminal investigation.

Your question, though, raises another interesting problem, which is that, for a few days there after his capture, it is really quite unclear what his status was. And at some point he went from being a person under military detention to a person who was being held primarily for criminal purposes. Certainly, when the FBI shows up and starts questioning him, at that point, I think unquestionably he is entitled to his Miranda rights and the right to counsel and the right to remain silent.

It may be that for a few days before that, before the FBI got involved in the case, he may have been in a more nebulous status, where it is really not clear whether he was being held as a prisoner, whether he was being held as a suspect, and there it is a little bit murkier actually as to whether he would have the entitlement to counsel in that circumstance. But it looks as though the government is basing the charges entirely on statements that he made to the FBI -- at least according to the FBI -- after being read his warnings and after waiving them in writing and orally. And so I think pretty clearly the FBI took the position Miranda applied and that he waived them.

MR. CROSBY: Could there be a case made, though, that he was captured in a war-like situation and therefore the people who were questioning him might have needed to gather whatever intelligence he could offer as quickly as possible?

MR. MULLER: Well, that may be. But that is why I am saying that it may be that for a few days after his capture he might really have been more analogous to an enemy belligerent, as to whom Miranda presumably would not apply. I don't think anyone has ever argued that, in a battlefield situation, captured soldiers have a right to counsel. I think that is not a place that we usually imagine lawyers showing up, in their ties and briefcases, on the battlefield.

On the other hand, at a certain point the government decided to take this in the direction of being a criminal investigation, and it involved the FBI. And once the FBI gets involved and begins questioning somebody, at that point, quite plainly, the person is no longer being treated as a prisoner or as a belligerent but is being treated as a suspect in a criminal investigation. And if that is the position the government is going to take, then surely they have to honor the protections that criminal suspects have under our system.

HOST : University of North Carolina law professor Eric Muller. He was talking with VOA News Now's Tom Crosby.

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