FBI failed to get Lindh's statement in writing

FBI failed to get Lindh's statement in writing
BY LENNY SAVINO AND FRANK DAVIES
fdavies@herald.com

WASHINGTON - The FBI may have violated its own rules in questioning John Walker Lindh by not taping or transcribing his statements, and that could determine the outcome of the case against him, experts said Thursday.

The FBI's only record of its two-day interrogation of the accused Taliban fighter is a summary form written by the agent who questioned him. Lindh did not sign the form.

''Everything turns on the confession. If it's thrown out, where's the proof?'' said former federal prosecutor Gregory Wallance, now a private attorney in New York City.

The defense and prosecution agree the case depends largely on the FBI's account of an interrogation with Lindh on Dec. 9 and 10 while Lindh was a U.S. military prisoner at Camp Rhino in southern Afghanistan. But the FBI's interview with Lindh appears not to have been recorded, an FBI agent testified this week, or transcribed and signed by Lindh.

Prosecutors say other witnesses and incriminating statements by Lindh back up what the government characterizes as a confession, but Lindh's defense team plans to attack the FBI's interrogation procedures and Lindh's treatment before responding to the FBI's questions. The government has said Lindh waived his right to an attorney, but the defense said he requested an attorney and was denied one.

Lindh, who turns 21 on Saturday, is charged with 10 counts of conspiring with Afghanistan's Taliban government and the al Qaeda terrorist network to kill Americans. He faces life imprisonment with no possibility of parole.

In a filing this week, defense attorneys argued that while at Camp Rhino, Lindh was stripped, bound, blindfolded, taped to a stretcher and kept outdoors in a metal shipping container with only one blanket to keep warm. After two to three days, he was taken from the shipping container to a tent and his blindfold removed. At that point, defense lawyers contend, Lindh asked an FBI agent for a lawyer and was told none were available.

That's not what the prosecution's filings say. They say Lindh waived his right to a lawyer voluntarily and ``stated that he has been treated well by the military, and has received adequate food and medical treatment while in their custody.''

Here's the prosecution's problem: When asked at a bond hearing Wednesday whether any recorded or written statement was taken at Lindh's alleged confession, FBI Special Agent Anne Asbury answered: ``To my knowledge, no.''

Asbury said that she was not the agent who interrogated Lindh, and that she had flown to Afghanistan and prepared Lindh's arrest affidavit from the information provided on another agent's report.

The FBI's ''Legal Handbook for Special Agents'' states: ``Where possible, written statements should be taken in all cases in which any confession or admission of guilt is obtained.''

When a written statement is prepared, the suspect has the right to correct and amend it before signing it.

The FBI has offered no explanation as to why taking a written statement would have been impossible in Lindh's case, but a U.S. law enforcement official, who asked not to be identified, said Thursday that agents broke no rules.

On occasion, he said, an agent's official report on an interview, called a Form 302, can be used to document a confession. Typically, the agent fills out the form based on notes taken during questioning.

Beth Wilkinson, a former prosecutor in the Oklahoma City bombing cases, said the FBI often does not tape interviews.

''Just sitting there taking notes is less intimidating than taping and helps you get information,'' she said.

Legal experts say the government's highest hurdle will be convincing a jury that Lindh made the statements the FBI says he made and that they were given voluntarily.

''The case rises and falls with the confession,'' said Henry Hockeimer, a former federal prosecutor now in private practice in Philadelphia. ``It's a tough case from the government's standpoint because you may not have other facts to corroborate the conduct he supposedly confessed to.''

Despite the controversy surrounding the alleged confession, it will be hard for a judge to not allow the FBI's version of Lindh's questioning given widespread public sentiment against him, said Jon Sale, a former Watergate prosecutor and private attorney in Miami.

''In a perfect world, the burden is on the government to show Lindh knowingly waived his rights,'' Sale said. ``In the real world, given that the public views him as a most heinous traitor, it would take a lot of courage for a judge to throw out that confession.''

Lindh's lawyers, by their questions, appear aware of the FBI's rules on confessions and intent on using them to build a case for rejecting his confession.

Prosecutors, in their brief filed this week, said they plan to buttress the FBI account of Lindh's statements with a CNN interview with him on Dec. 2 and statements he allegedly made to U.S. soldiers who detained him in Afghanistan.

''The government will say there's nothing wrong in [soldiers] asking questions, especially in a battlefield situation,'' said Mark Tushnet, a constitutional law professor at Georgetown University. ``But whether you can use that in a criminal prosecution is a tough question.''

Sale said the CNN interview would likely be admissible ``if it can be shown that Lindh was lucid enough to know what he was saying.''

Scroll back a bit, that's how I got the story yesterday....but I'm not kidding, I'm skeptical. Just because I heard it, and mombonn confirmed we both heard it on television, and now this "Miami Herald" article (without a confirming link), is posted, we do not, repeat "do not" know this is true.

and if it is true, we don't know but what the FEDS wanted it this way. I can see the FBI claiming the necessity of the moment, needed the information from Lindt to save lives, on a ship, during war, yada yada, compelled them to operate under different rules. I mean, Lindt's word against an FBI agent...who's the judge going to believe?

But to answer the question, yes I understood the Justice Dept to say earlier, that they had Lindt's statement in writing, and that in writing, he had waived right to counsel.

The law does not require his signature. The only requirement is proof that he consented. This can be accomplished by credible oral testimony.

The truth is the FBI almost never tapes or records a transcript. The book says do it, but the unwritten law says do not unless you have too. You may recall that neither the FBI or the Dallas police recorded or transrcibed the interrogation of Lee Harvey Oswald in the three days of interrogation after Kennedy was killed. I think Lee was in a little deeper than Johnny Taliban.

It has been my experience that the FBI will not make tapes or have a court reporter on hand unless the object of the interrogation demands it. What they do have, is 5 or 6 officers of the court on hand to witness everyhting said by the suspecet. They will all testify as to what the suspect said. That is 5 officers saying one thing against a defendant who may try to say another. That makes the preponderance of the evidence in favor of the FBI.

That leaves little room for defense attorneys to argue about the meaning of "Is" as opposed to "Was" on a sheet of paper. It also means 5 witnesses against one at the trial.

The media almost always exagerates on two things in a trial. The first one is the defense claims before trial, and the second is the hours worked they put down on their time cards.

"They were too busy monitoring internet users with their new powers to be concerned with securing evidence in one of the biggest cases ever to fall into their laps."

That's not fair!!
They were on an UNDERCOVER, CLOAK and dagger mission for Ashcroft
to determine whether the Statue of Justice was a B or C cup.

"The law does not require his signature. The only requirement is proof that he consented. This can be accomplished by credible oral testimony"

. I agree, but Lindh will point to the internal rule and try to raise doubts. Just look at these posts, he'll be saying what we are all saying, --in the most important case that the agent ever had just WHY did he depart from procedure. One obvious inference is that, as Lindh will argue, there was no way in Hell he would sign the he had waived a lawyer, he was constantly asking for a lawyer when he wasn't yelling " I love America", and "I hate Allah, I'm an Episcopalian"

As a former prosecutor (thus the screen name) this normally would present pretty bad problems. The failure to get it in writing is usually fatal if a writing was available. (It would not be on the street, where you could give the guy his rights but not get it on paper, and the perp later changes his mind).

The entire suppression issue will focus on credibility of the person who took the statement. I would salviate at the chance to cross examine the cop

I could spend an hour going through each and every question, which he would only answer yes or no, then I would lead him down the primrose path i.e. YOu went to the academy, you were trained on how to take statemetns, you know why writing it down is important, you consider yourself a good cop, the purpose of writing it down b/c its easier to recollect what really happened rathr than do it from memory later, you knew his statment would likely be an issue in this case, etc. etc. etc. He would be a sniveling rat by the time I was done.

But, do you in your right mind think a judge,even one with a job for life, is going to throw this case out based on this. No way. Never. IF there was a rule that said statements MUST be in writing that would be one thing. But the Judge can simply say the officer's testimony was credible and allow the evidence. One thing appeals courts don't do is overturn on credibility. Don't sweat this one.

If I were on a jury for any criminal case, I would regard very suspiciously any part of the prosecutor's case which the state should have had evidence but did not. I hope that the "failed to get proof of confession" biz here is just the imagination of the defense attorney or something; if Mr. Lindh were to claim in court that what he actually said was nothing like what the government claims he said, I'd be more skeptical of the government which has shown itself to be untrustworthy than of the individual of whom such was alleged.

Just an unruly kid,
to hell with what he did,
every body does wrong-
Can't we all just get along?

He just hates our guts,
like all radical nuts,
brain washed in our schools,
the victims of damn liberal fools.

Poor Johnny Jihad,
proclaimed Allah his God,
and deserted his home land,
to serve with Bin Laden in Afghanistan.

Poor Johnny was wrong,
in thinking Allah was strong,
and that Bin Laden was brave,
both fled, their own asses to save.

Now he's clean shaven instead,
of a mop on his head,
looking normal instead of plain mean,
Lawyers do that to every damn fiend.

Evil is as evil does,
Johnny is, still who he was,
and evermore will be,
a foe to precious liberty.

his attorneys hum the lawyers tune,
to reporters they all croon,
common sense is breaking down,
the lawyers circus comes to town.

Tribunes are the way to go,
Johnny Jihad proves that's so,
his lawyer's show their strategy
have their media con, both you and me.

Be careful on those generalizations. In alot of cases thing don't go just as they should. In reality, these situations have so many variables one is not just like the other.

One of my pet peeves were people who didn't convict because the cops didn't get fingerprings. The problem is that getting a reliable fingerprint is very very difficult. It is possible to touch something all over but because of many variables you can't control (temperature, surface, moisture in the air) you don't get one. Some things are not as simple as they seem.

Although in this case, the screw up is really bad, especially if they were in a controlled setting (not on a battlefield or makeshift prison). I'd be interested to hear the excuse.

On a professional level I would be salivating at a chance to get the confession thrown out.

Be careful on those generalizations. In alot of cases thing don't go just as they should. In reality, these situations have so many variables one is not just like the other.

Right. Seldom does all of the evidence that one would want magically make itself available. I am well aware of that. One of my pet peeves were people who didn't convict because the cops didn't get fingerprings. The problem is that getting a reliable fingerprint is very very difficult. It is possible to touch something all over but because of many variables you can't control (temperature, surface, moisture in the air) you don't get one. Some things are not as simple as they seem.

Of course. Although in this case, the screw up is really bad, especially if they were in a controlled setting (not on a battlefield or makeshift prison). I'd be interested to hear the excuse.

Right. In a case like this I see no credible reason why the evidence of Mr. Lindh's confession should not exist unless either (1) the people who conducted the interviews did not want something in them to be seen by the jury, or (2) the people who conducted the interviews were total morons. In neither of those cases would I be inclined to convict.

On a professional level I would be salivating at a chance to get the confession thrown out.

The one good thing about such an outcome would be that it would provide an excuse for some housecleaning at what appears to be the Federal Bureau of Incompetance. I hope that if such an opportunity appears Bush takes advantage of it.

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