U.S. v. Lindh, Round 1

By John Cloud

John Walker Lindh appeared in court last week at a brief proceeding called an identity hearing. It was an appropriate name, since deciding who he is will determine whether he should go to prison for the rest of his life. Maybe he is Abdul Hamid, a name he used when he was a Talib, allegedly one who conspired to kill Americans. Or maybe he's John Walker, a suburban '90s kid who lit out for distant territories both geographic and religious, seeking himself (and taking his mother's maiden name) after his parents' estrangement. In his most recent incarnation, at the hearing, he was John Lindh--that's his given surname, now insisted upon by his image-conscious legal team. This version of the 20-year-old is a U.S. citizen who "loves America," as his dad insists, but who got messed up with Taliban brainwashers and then U.S. soldiers who denied him a lawyer for weeks on end.

Most likely, he is some indistinct combination of all three. But lawyers often skate over such complexities, and last week the U.S. Department of Justice and Lindh's liberal San Francisco attorney, James Brosnahan, squared off with simpler stories. If the case against Lindh goes to a jury, as Brosnahan predicts, it will turn on which story seems more plausible.

This is what the government says Lindh told an FBI agent in interviews on Dec. 9 and Dec. 10, interviews that will provide the bulk of the prosecution's case: after converting to Islam in the late '90s, Lindh traveled to Pakistan to study the religion and learn Arabic. By last June, he had become so passionate about radical Islam that he went to Afghanistan to join the Taliban. Soon he was training at a camp run by al-Qaeda, a group Lindh knew to be "against America."

It was quite a summer camp. According to the FBI, young master Lindh took courses in rocket-propelled grenades and battlefield combat. He even allegedly met Osama bin Laden. But when one of bin Laden's lieutenants asked Lindh if he wanted to leave Afghanistan and conduct operations against the U.S., Lindh declined, preferring the front lines of the Taliban's war with the Northern Alliance. A few weeks later, Lindh heard about the events of Sept. 11 on the radio. "According to [Lindh]," an FBI affidavit says, "it was his and his comrades' understanding at the time that bin Laden had ordered the attacks and that additional attacks would follow." That didn't seem to bother Lindh, who continued fighting with the Taliban for weeks, until U.S. bombs forced him and many Taliban to surrender. He eventually wound up at the Qala-i-Jangi prison compound, where CIA officer Johnny Spann tried to get him to talk; shortly afterward, prisoners rioted, killing Spann. Lindh was shot in the leg during the melee, but whether he was involved in the uprising is unclear.

Not surprisingly, Brosnahan has a different story, one with this central, oft-repeated theme: Lindh never harmed any American. Brosnahan offers few specifics about what Lindh actually did in Afghanistan. But he says the comments from Lindh's revealing December sessions with the FBI must be ruled inadmissible, since Lindh had asked for a lawyer more than a week before but never got one. Instead the U.S. kept him floating around the Arabian Sea, where the selection of attorneys is quite limited. "Our government is playing with dynamite," Brosnahan told TIME. "[My client] has a right to counsel under the Geneva Convention."

In short, Brosnahan and the prosecutors appear to be digging in. But both sides have their weaknesses. The most glaring for the prosecution is that it didn't have enough goods on Lindh to charge him with treason. Instead Lindh is charged with conspiring to kill Americans outside the U.S. and with providing aid to terrorist groups. The government has not revealed evidence to refute Brosnahan's claim that his client never actually hurt Americans. Even the FBI affidavit notes that Lindh declined the al-Qaeda offer to work against the U.S.

The other major prosecution problem is that Brosnahan can argue that Lindh was in such bad shape during the interrogations--he had been shot, appeared malnourished, and may have been doped on morphine--that the poor kid thought he was talking to Big Bird. On Friday MSNBC began running a videotape of Lindh that was apparently filmed on Dec. 14. Even then--four days after his FBI interview--he had chills and could barely keep his eyes open.

Even so, Brosnahan may have a worse hand. Lindh signed a formal waiver of his right to an attorney, according to Attorney General John Ashcroft, and also verbally waived that right. "That Miranda [waiver] is likely to be very hard for [Lindh] to overcome," says Robert Weisberg, a Stanford law professor. Also, before he spoke with the FBI, Lindh voluntarily told CNN much the same story. Finally, the legal standard required to prove conspiracy "is kind of broad and vague," says Weisberg, and thus gives the edge to the prosecution. Top officials at the Justice Department are betting the matter will end with a quiet guilty plea.

For now, though, Lindh has bathed and visited a barber. If he is planning to take the stand, he may also want to drop the faux-Middle East accent. "Oh, boy, I wouldn't let him testify with that," says Richard Uviller, a Columbia law professor. And "it may be that he's still militant, in which case he's not going to help himself at all."

--Reported by Elaine Shannon/Washington and Deirdre van Dyk/New York

With reporting by Elaine Shannon/Washington and Deirdre van Dyk/New York