|
January
19. 2002
Jordan
Green
Enron
Stole Our Future
January
18, 2002
Tom Turnipseed
The
Enron Model
Walt Brasch
Enron
at the White House
CounterPunch
Wire
Human
Rights Groups Says Guantanamo Prisoners Must
Be Treated as POWs
January
17, 2002
Gideon
Levy
Bulldozing
Rafah
Uri Avnery
That
Weapons Shipment
January
16, 2002
John Chuckman
The
Angel and the Pretzel
Lawrence
McGuire
Subverting
the
Geneva Convention
Kathy
Kelly
An
Open Letter to
Richard Perle on Iraq
January
15, 2002
George
Monbiot
Greenpeace,
Lord Melchett
and the Business of Betrayal
Jack McCarthy
Follow
the Pretzel
William
Blum
Atta
and the Times:
Follow the Changing Story
Edward
Said
Emerging
Alternatives
in Palestine
January
14, 2002
David
Vest
Open
Bag. Eat Pretzels.
Patrick
Cockburn
Collapse
of Georgia
Ignored by the World
Mokhiber/Weissman
Enron's
Accountants:
When In Doubt, Shred It
January
13, 2002
C.G. Estabrook
Why
We Kill People
January
12, 2002
Cockburn/St.
Clair
Forbidden
Truths
January
11, 2002
Lee Balllinger/Dave
Marsh
Neil
Young's Duet with Ashcroft
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
100s of Links
About 9/11
CounterPunch:
Complete
Coverage of 9/11 and Its Aftermath
Five
Days That
Shook The World:
Seattle and Beyond
By Alexander
Cockburn
and Jeffrey St. Clair
Photos by Allan Sekula
(Click Here to Order from CounterPunch
Online at 20% Off Amazon.com's price!)
INSIDE
EXCLUSIVE
TO
COUNTERPUNCH
SUBSCRIBERS
Published Oct. 15, 2001
8-Page Special Issue
War Diary
CIA's Assassination Plan a History of
Torture in US Prisons
bin Laden and Bush
Business Connections
Aisha Ikramuddin on the Hidden Hype
of US Food Bombs
Peter Linebaugh on
Pakistan
Christopher Hitchens' Love for Mrs. Thatcher
Jiang Zemin Tells Bush:
Nuke 'Em
Search
CounterPunch
Read Whiteout and Find Out
How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
and Jeffrey St. Clair
The
Phoenix Program
by Douglas Valentine
Al Gore:
A User's Manual
by Cockburn
and St. Clair
Buy
This Explosive
New Book at an
Amazing Discount!
Reviews of Gore:
a User's Manual
|
January
21, 2002
Will John Walker's Statements
Be Used Against Him?
By Marjorie Cohn
No evidence is more damning than the confession
of a defendant in a criminal case. Attorney John Ashcroft has
announced that the federal government will charge John Walker,
who was found in the company of the Taliban in Afghanistan, with
conspiracy and aiding terrorists. Walker's statements to the
government and to CNN, if admitted, will be crucial to the prosecution's
case against him. There are three possible constitutional bases
on which the admissibility of his statements can be analyzed.
First, as a suspect in custodial interrogation,
Walker had the right to remain silent and the right to counsel
present with him during questioning, under Miranda v. Arizona,
which protects the Fifth Amendment privilege against self-incrimination.
The government interrogated Walker for forty-five days in a custodial
setting without his attorney present. Ashcroft claims Walker
waived his Miranda rights both orally and in writing, and thus
plans to use the fruits of those interrogations against Walker.
Undoubtedly, Walker's attorneys will
argue at trial that, under the circumstances, Walker could not
have voluntarily, knowingly and intelligently waived his rights.
Isolated with government interrogators on a ship in the ocean,
with no opportunity to communicate with a lawyer or his family,
he likely felt intense pressure to cooperate with the government,
and thus did not voluntarily waive his rights. When Walker was
found, he had been wounded and was in a weakened condition. His
interrogators were experts, likely to succeed in eliciting statements
from him.
Although Walker's parents retained a
lawyer on his behalf, the Supreme Court held in Moran v. Burbine,
that the right to counsel is a personal one and can only be asserted
by the suspect himself. In that case, the suspect's sister, unbeknownst
to Burbine, had secured counsel for him. The attorney continually
tried to see Burbine, but was turned away by police. Without
invoking his right to counsel, Burbine waived his Miranda rights
and confessed to murder. It took sixty pages for Justice Sandra
Day O'Connor, writing for the majority, to justify how the police
could keep an attorney from a suspect in custodial interrogation.
Prosecutors may assert the public safety
exception to Miranda, by arguing that national security concerns
in obtaining intelligence information from Walker about the activities
of the Taliban and al Qaeda, trumped their obligations to comply
with Miranda. The exception was successfully asserted in New
York v. Quarles, where a rape suspect, who ran into a grocery
store in the middle of the night, was found with an empty gun
holster. Without Mirandizing him, the police asked him where
he had hidden the gun. The admission of his statements was justified
as necessary to protect the public safety, even though the market
was closed and he was in police custody. This exception is rarely
used, but national security concerns may present a more compelling
case to invoke it in Walker's case.
The second constitutional basis on which
the defense may object to the use of Walker's statements is the
Fifth Amendment's due process clause, which protects a suspect
against being coerced into confessing. In ruling on whether Walker
was coerced by the government into confessing, the judge must
decide where to draw that fine line between where free will ends
and compulsion begins.
Walker may argue he was coerced by being
held incommunicado for forty-five days and by forceful tactics
by the interrogators themselves. When he appeared on CNN, he
was wounded and heavily drugged on morphine. If Walker can show
that condition persisted during his interrogation by the government,
he may convince the judge his due process rights were violated.
Courts, however, are generally hesitant to exclude statements
on this ground.
The government will also seek to use
statements Walker made on CNN shortly after his capture. Although
non-governmental persons are not required to comply with Miranda,
their interrogations may be challenged under the Fifth Amendment's
due process clause. Walker objected to the taping of his conversation
with CNN; yet, the lights and camera were turned on anyway. He
was questioned by CNN personnel and made some very damaging admissions,
which were broadcast repeatedly on CNN. It is undisputed that
Walker was in great pain and heavily drugged on morphine when
he spoke to CNN. That may be sufficient to exclude those statements.
Finally, James Brosnahan, an attorney
hired by Walker's parents, has still not been allowed to speak
with Walker. Under the Sixth Amendment, a defendant in a criminal
case is entitled to the assistance of counsel once criminal charges
have been filed against him. The government waited forty-five
days to bring charges against Walker, perhaps in order to avoid
an obligation to provide him with counsel.
The decision about whether to allow the
jury to consider Walker's statements will be made by the judge
before trial. This determination will take place after hearing
testimony by the government interrogators and, perhaps, Walker
himself. Unfortunately, when the versions of events surrounding
interrogations conflict, judges often believe the government
and not the defendant. The case against Walker was intentionally
brought in the United States District Court for the Eastern District
of Virginia, reputedly one of the most conservative federal courts
in the country.
John Walker is charged with conspiracy
to murder United States nationals abroad as well as lesser charges.
Conspiracy, often based on guilt by association, is not difficult
to prove. Walker's statements to the government and to CNN are
crucial to the prosecutor's case. In spite of intense public
pressure to admit them, the judge should make a considered decision
based on the law.
Marjorie Cohn
is an associate professor at Thomas Jefferson School of Law in
San Diego, where she teaches criminal procedure.
|