Judge declines to dismiss Lindh indictment, rejecting defense arguments

Monday, June 17th 2002, 12:00 am
By: News On 6

ALEXANDRIA, Va. (AP) _ A federal judge refused on Monday to dismiss John Walker Lindh's indictment, rejecting defense arguments that the American had a constitutional right to associate with the Taliban and could not get a fair trial.

U.S. District Judge T.S. Ellis III's decision clears the way for the government to proceed with prosecuting the U.S.-born Taliban soldier on charges he conspired to murder Americans.

``The First Amendment guarantee of freedom of association is not a pass to provide terrorists with resources and services,'' Ellis said.

The judge also turned down Lindh's argument that he could not get a fair trial anywhere in the United States, especially in a northern Virginia courthouse located just nine miles from the scene of the Sept. 11 attack on the Pentagon.

In addition, Ellis rejected defense claims that Lindh had immunity from federal prosecution as a captured enemy soldier and that he was unfairly prosecuted because of his Muslim religion.

``This defendant can receive a fair trial here as well as elsewhere,'' Ellis said in making his ruling. The judge promised he would move the case from Virginia if he later determined he couldn't find a fair and impartial jury, but indicated that was unlikely based on his experience on the bench.

Lindh was wearing black frame glasses and his hair has grown out from a crew cut several months ago. He conferred often with his attorneys during several hours of arguments and showed no emotion when the judge handed down the ruling.

Lindh's parents, Frank Lindh and Marilyn Walker, sat together behind the defense table.

The lawyers had mounted a broad constitutional challenge as they asked Ellis to dismiss Lindh's indictment on several grounds.

``You can't charge a soldier with murder for simply being a soldier,'' lawyer George Harris said as he argued Lindh should have immunity from prosecution.

Government prosecutors countered that they could prove Lindh trained at an al-Qaida camp and joined the Taliban with the intention of harming Americans.

The defense wrongly ``seeks to portray the defendant as an honorable soldier on a par with our own servicemen and women,'' Assistant U.S. Attorney John Davis said

At the very least, the defense wanted to move the trial to Lindh's home state of California and away from a northern Virginia courthouse.

``That is not the environment where John Lindh can get a fair trial,'' lawyer James Brosnahan argued.

Assistant U.S. Attorney Randy Bellows countered that a change of venue was unnecessary because the attacks affected all Americans, not just those in northern Virginia and New York.

Jurors in northern Virginia ``will be as fair-minded as any jurors in the country,'' the prosecutor said.

The defense also argued that Lindh had the right to associate with the Taliban under the First Amendment, that he became a soldier simply to help the Taliban defeat its Afghan rivals and he never harmed or intended to harm any Americans.

``The issue is whether under the statutes the government can proceed with guilt by association rather than individual culpability,'' Harris told the judge.

Responded Davis: ``The case is not about association, but about acts of violence with groups bent on violence.''

Lindh is charged with conspiring to murder Americans, providing support to the al-Qaida and the Taliban and using firearms during crimes of violence.

Lindh's lawyers have vigorously denied that he ever was part of al-Qaida, although the indictment said he personally met Osama bin Laden while at a training camp in Afghanistan.

Brosnahan accused top U.S. officials of making inflammatory statements that convinced members of the public that Lindh is guilty.

He said Lindh is a victim of selective prosecution, since he is charged with aiding the Taliban under a law designed to charge corporations with making illegal financial transactions.

The defense also raised concerns the government had repeatedly and unnecessarily identified Lindh as a Muslim even though President Bush has implored Americans not to discriminate against Muslims.

Davis, the prosecutor, said the statutes are broad and permit charging someone with a crime who contributed personal services to an illegal organization.