Posted on 02/08/2002 3:24:57 PM PST by Grut
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.
`WHERE'S THE PROOF?'
''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.
RIGHT TO LAWYER
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.''
BUILDING A CASE
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.''
The person interviewed never signs the “summary form”, only the interviewing FBI agents do. It’s known as a 302 form interview and it’s been under fire for decades because it doesn’t document anything said by anyone present at the interview and is an invitation to skullduggery. For more on the outrageous 302 form interview procedure click here.
LOL, maybe you missed it in the Washington Post or NYT. They would not know investigative reporting if they stepped in it. The story is bylined by two real reporters for the Miami Herald.
How much is the CNN tape worth in court?
As far as O.J. Simpson did?
Thanks again for posting it.
But the basis for the indictments, Ashcroft said, came from Walker's statements to FBI investigators. Walker was read his Miranda rights but waived them, the attorney general said.
The criminal complaint also said Walker signed a waiver of those rights and agreed to be questioned by an FBI special agent December 9 or 10.
The above second italicized paragraph is the key. It seems that the gist of the defense is to muddy the waters. They are saying that the FBI didn't tape record the interrogation sessions on Dec. 9,10 that were already agreed to in writing by Johhny Jihad and hope that the initial waiver gets lost in the process.
The attack the defense is using is that the FBI statement was not recorded.
But that aside, I'm so interested because I think this angle on the Johnny Walker story is going to shake out as a great study in how the media treats something like this.
The FBI = Incompetent or Corrupt,
the eventual verdict on Lindt,
another look at lawyers
Aschroft's Justice Department vs Reno
His name is Robert Mueller. He will do nothing to clean up the FBI. The guy is a cover the government and politicians ass guy and always has been....even Clinton knew that.
I once got a confession thrown out when I was prosecuting because I didn't SPECIFICALLY ask the cop on teh stand whether or not he told the guy he had a right to a lawyer, etc. I merely asked him if he gave the Defendant the Miranda rights. The cop said yes. The judge said becuase I didn't specifically ask the cop each of the components of Miranda while he was on the stand, the confession had to be tossed. Lucklily we won the case.
http://www.msnbc.com/news/703546.asp#BODY
This adds to the discussion. NEWSWEEK's not a favorite of mine, but I bet it's picked up, (after us), what the main topic of discussion will be later this week, when Johnny Walker goes back before the judge. Can't pass on anything that might be an opportunity to rag on Ashcroft and the Bush administration.
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