Trying John Walker

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.

Like What You’ve Read? Support CounterPunch
Weekend Edition
July 31-33, 2015
Jeffrey St. Clair
Bernie and the Sandernistas
John Pilger
Julian Assange: the Untold Story of an Epic Struggle for Justice
Roberto J. González – David Price
Remaking the Human Terrain: The US Military’s Continuing Quest to Commandeer Culture
Lawrence Ware
Bernie Sanders’ Race Problem
Andrew Levine
The Logic of Illlogic: Narrow Self-Interest Keeps Israel’s “Existential Threats” Alive
ANDRE VLTCHEK
Kos, Bodrum, Desperate Refugees and a Dying Child
Paul Street
“That’s Politics”: the Sandernistas on the Master’s Schedule
Mike Whitney
Power-Mad Erdogan Launches War in Attempt to Become Turkey’s Supreme Leader
Ellen Brown
The Greek Coup: Liquidity as a Weapon of Coercion
Sam Husseini
How #AllLivesMatter and #BlackLivesMatter Can Devalue Life
Stephen Lendman
Russia Challenges America’s Orwellian NED
Will Parrish
The Politics of California’s Water System
John Wight
The Murder of Ali Saad Dawabsha, a Palestinian Infant Burned Alive by Israeli Terrorists
Jeffrey Blankfort
Leading Bibi’s Army in the War for Washington
Geoffrey McDonald
Obama’s Overtime Tweak: What is the Fair Price of a Missed Life?
Brian Cloughley
Hypocrisy, Obama-Style
Robert Fantina
Israeli Missteps Take a Toll
Pete Dolack
Speculators Circling Puerto Rico Latest Mode of Colonialism
Ron Jacobs
Spying on Black Writers: the FB Eye Blues
Paul Buhle
The Leftwing Seventies?
Binoy Kampmark
The TPP Trade Deal: of Sovereignty and Secrecy
David Swanson
Vietnam, Fifty Years After Defeating the US
Robert Hunziker
Human-Made Evolution
Shamus Cooke
Why Obama’s “Safe Zone” in Syria Will Inflame the War Zone
David Rosen
Hillary Clinton: Learn From Your Sisters
Shepherd Bliss
Why I Support Bernie Sanders for President
Louis Proyect
Manufacturing Denial
Howard Lisnoff
The Wrong Argument
Tracey Harris
Living Tiny: a Richer and More Sustainable Future
Kollibri terre Sonnenblume
A Day of Tears: Report from the “sHell No!” Action in Portland
Tom Clifford
Guns of August: the Gulf War Revisited
Renee Lovelace
I Dream of Ghana
Colin Todhunter
GMOs: Where Does Science Begin and Lobbying End?
Ben Debney
Modern Newspeak Dictionary, pt. II
Christopher Brauchli
Guns Don’t Kill People, Immigrants Do and Other Congressional Words of Wisdom
S. Mubashir Noor
India’s UNSC Endgame
Norman Ball
Ten Questions for Lee Drutman: Author of “The Business of America is Lobbying”
Masturah Alatas
Six Critics in Search of an Author
Mark Hand
Cinéma Engagé: Filmmaker Chronicles Texas Fracking Wars
Mary Lou Singleton
Gender, Patriarchy, and All That Jazz
Patrick Hiller
The Icebreaker and #ShellNo: How Activists Determine the Course
Charles Larson
Tango Bends Its Gender: Carolina De Robertis’s “The Gods of Tango”
July 30, 2015
Bill Blunden
The NSA’s 9/11 Cover-Up: General Hayden Told a Lie, and It’s a Whopper
Richard Ward
Sandra Bland, Rebel
Jeffrey St. Clair
How One Safari Nut, the CIA and Neoliberal Environmentalists Plotted to Destroy Mozambique