Held Over from Sunday's posts...

A motions hearing in the John Walker Lindh case begins Monday before federal Judge Thomas Ellis, II. At issue is the admission of Lindh's statements to the military and to a CNN reporter. Lindh says the statements were coerced and in violation of his constitutional rights. He was neither mirandized nor provided counsel. He was not told his family had retained a lawyer for him. He says he was tortured, abused and in pain, such that he could not voluntarily give consent to being questioned.

As to the CNN reporter, Lindh claims he was working with the Government's blessing inside the prison camp and government agents were present during the interview, thus Miranda rights apply.

Lindh is charged with conspiring to kill Americans abroad and providing material support to the Taliban and Al Qaeda. His statements form the core of the government's case against him.

According to the Chronicle article, Peter Keane, dean of Golden Gate University School of Law, believes Lindh shouldn't be prosecuted at all. He thinks the Judge ultimately will admit the statements which is tantamount to giving in to the lynch mob mentality at the expense of upholding the Constitution.

We think the law is clear. If you are interrogated by police agents you are entitled to be Mirandized. If you aren't, the remedy is that nothing you say, and nothing derived from what you say may be introduced by the Government at trial.

That means you have the right to have a lawyer present, and if you can't afford one, one will be provided. The Government's lame excuse is there was no lawyer available where Lindh was being held. We say they had a duty to move him to where one was available before questioning him. Or wait until the lawyer his family hired for him arrived.

Clearly the Govenrment chose to keep Lindh on foreign shores to obtain information from him that a defense lawyer would not have allowed him to give. Not to mention his treatment was cruel and abusive. He was kept nude and blindfolded in a metal shipping container with a bullet injury in his leg. For more on the facts of the case from Lindh's point of view, check out Free John Walker.

The Government made a choice to interrogate Lindh in violation of his constitutional rights. It did so at its peril, and the legal remedy is suppression of his statements.

Another thing that really is unfair about this case is the "manufactured venue." We say unfair, because unfortunately it is not illegal. The law allows the Government to try someone arrested abroad in the place where the the person first re-enters the country. The Government flew Lindh back to the U.S. and they purposely flew him to Washington, so they could try him in ultra-conservative Virginia, increasing their chances of a speedy conviction.

What is so startling to us is the Government's refusal to acknowledge that they have zero evidence that Lindh intended to kill Americans. Even the Indictment against him, Paragraph 14 of Count 1 in particular, points out that when Lindh was given the choice to fight against Americans or fight against the Northern Alliance in Afganistan, he chose the latter. Read it for yourselves.

Lindh was on a religious quest, albeit a misguided one, and ended up in the wrong place at the wrong time. He did nothing that we know of to cause or further the attacks of September 11. He went to the prison camp to surrender. He was kept, like the other prisoners, in sub-human conditions. There is no evidence that we know of to say he participated in the prison uprising. Even the Government had enough sense not to charge him with the murder of CIA agent Spann.

He was helping the Taliban fight the Northern Alliance. He trained in the camps for that purpose, not to fight Americans.

He shouldn't even have to prove this. Or anything. He remains cloaked with the presumption of innocence. The only burden belongs to the Government, to prove him guilty of the specific charged offenses, not some other conduct, beyond a reasonable doubt--with legally competent evidence.

His statements, in our view, are not legally competent evidence. But, the way Judge Ellis has responded so far, we doubt he will see it that way.

Trying to look on the bright side, at least he has a great lawyer who is devoted to his case and a true fighter. We wish that were enough.