Prosecutors, defense attorneys argue over case of American-born Taliban

Monday, April 1st 2002, 12:00 am

By: News On 6

ALEXANDRIA, Va. (AP) _ Prosecutors acknowledged Monday they do not have evidence that John Walker Lindh killed Americans in Afghanistan. But a federal judge said that would not be necessary to prove Lindh joined a conspiracy to murder Americans as a Taliban fighter.

When District Judge T.S. Ellis III asked whether the government's case included alleged attempts by Lindh to kill American citizens, Assistant U.S. Attorney David Kelly replied, ``At the moment, I am not aware of it.''

Another prosecutor, Assistant U.S. Attorney John Davis, added that ``there's no allegation of personal involvement'' by Lindh in the killing of Johnny Micheal Spann, a CIA agent who was slain during a prison uprising in Afghanistan at which Lindh was present.

Ellis summarized the government's case and told the prosecutors, ``You are not required to show that he shot at Americans.'' During the hearing on defense motions for numerous government documents and interviews, however, the judge repeatedly admonished prosecutors to give Lindh's lawyers any information they turn up that is favorable to the defendant.

Kelly said Lindh did allegedly join forces with al-Qaida and the Taliban, making preparations ``for an expected onslaught'' by U.S. forces after the Sept. 11 attacks.

Lindh is charged with conspiring to murder U.S. nationals, providing support and services to foreign terrorist organizations and using firearms and destructive devices during crimes of violence. Three of the 10 charges carry a maximum life sentence; the other seven have prison terms of up to 90 years. He was brought back to the United States by military escort on Jan. 23 and has been kept in jail since then.

Lindh, 21, wore a green prison jumpsuit and sat at the defense table. He conferred with his attorneys as they made their arguments at the hearing, one of a series of pretrial sessions concerned with legal issues. Lindh's parents, Frank Lindh and Marilyn Walker, sat in the second row for the proceedings, as they had for all previous court appearances.

Defense attorney James Brosnahan, in an interview with The Associated Press outside the courthouse, said he was heartened by the prosecutors' statements.

``I thought it was interesting that the government admitted it had absolutely no evidence that Mr. Lindh did anything against any American,'' Brosnahan said. ``I think fair-minded people would wonder just what is the government's case.''

Ellis ruled that many of the defense requests for information were too broad. ``I would assume not everyone Mr. Lindh grunted at falls into that category'' of a government official or U.S. soldier who should be made available to his attorneys, he said.

When defense attorney George Harris argued that Lindh's lawyers needed documents to show whether camps where Lindh trained in Afghanistan were for the purpose of terrorist or military activities, prosecutors said it didn't matter because Lindh joined a terrorist organization.

The judge then asked, ``What was he doing over there?'' Ellis quickly said his remark was improper and withdrew the question.

Ellis told prosecutors that they must ask U.S. civilian and military officials, al-Qaida detainees at Guantanamo Bay, Cuba, and others whether they would be willing to submit to interviews by defense lawyers.

The judge set May 31 for a hearing to determine who could be interviewed and said the defense could subpoena anyone who refused. Ellis said he would determine whether the interviews would actually take place.

He denied a defense request for access to some 30 e-mails that apparently were exchanged by Justice Department officials, ruling that the documents contained no information that would be helpful to Lindh's case.

The judge said he would preserve the identity of a confidential source known as CS-1, an American who interviewed Lindh and was present at the prison uprising in which Spann was killed. Ellis also warned prosecutors that they could not advise CS-1 or any other witnesses that they shouldn't talk to the defense, but must allow each particular witness to make his or her decision.

Ellis refused Monday to rule on one issue that had been considered likely to come up: the argument by defense counsel that statements made to U.S. authorities while in custody in Afghanistan, allegedly under duress, not be admitted into evidence.

Lindh's lawyers have said their client was held under horrific conditions after his capture in Afghanistan. In papers filed last week, the government denied this, saying his food and medical care equaled that of U.S. soldiers.