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(Published December 26, 2001)
Well, the Boss has asked for options about how to deal with Walker.
The good part is that he's made it clear that I'm to ignore political considerations. Apparently, Rove and the other political mechanics in the White House aren't going to have any input into this. Maybe Rumsfeld, because of all the other prisoners we have, but not anybody else. Only the President. And the other day, he said Walker faces a grim future.
The bad part is that he may not like what I'm going to tell him, so we better be very sure we're on solid ground and there are no leaks before he makes up his mind. Or I'll have painted him into a corner. Not a good idea.
Even before last week, the facts were pretty clear. Since then, we've learned that Walker was definitely Al Qaeda. And the president said so. No question Walker knew who he was with, and what he was doing. Newsweek just reported that he was tight enough with Al Qaeda to live in a secret camp frequented by Osama himself. Where one of the hijackers trained. Walker met with bin Laden at least once. He opted to train as a fighter rather than as a martyr. He admitted membership in Ansar, and that it was funded by bin Laden. Solid facts!
Let's start with the rule-outs.
He's an American citizen, so no military tribunal. If we want to go against his citizenship, that's way down the road after all the criminal proceedings. But it's worth thinking about.
No court-martial, because he wasn't in our army.
If he's just a prisoner of war, sooner or later he gets to go home. Good that Don agreed not to call Walker a POW. And he wasn't in uniform. So, he's not a POW. Maybe some Geneva Conventions problems here, too.
No war crimes, either. No Nuremberg.
Terrorism has to be within the United States. Bad facts. No help there.
Forget what we charged the Rosenbergs with. There's no Espionage Act here.
There's a statute prohibiting enlistment to serve against the United States, but that's only three years tops.
Lying to a federal officer is a felony under 18 U.S.C. 1001, but that's only five, tops.
Seditious conspiracy and advocating overthrow of the US government don't apply.
No matter what he tells us that might help, he can't go free.
No matter what those talking-heads lawyers say on TV, there's no Miranda rights problem. Not for an enemy detainee interrogated halfway around the world by American troops and CIA agents. I'd like to ask Gerry Spence if Axis Sally or Tokyo Rose were entitled to Miranda warnings. He'd probably say yes.
So where does that leave us?
Let's start with treason.
I'm amazed at how wrong everyone outside the Justice Department is about treason. Especially those law professors. Where does the media get them? Virtually every one of them deserves an F. All you have to do is read eight cases, three in the Supreme Court and five in Courts of Appeal. Treason hard to prove? Ridiculous. Can we get an indictment on whether he intended to betray, an overt act, aid and comfort, with two-witness proof? Of course we can. Could a jury convict? Sure. No question about the acts. Look at everything he did. They can infer intent from the act. Aid and comfort is easy. After all, he fought with Al Qaeda, stonewalled Spann, was there when he was killed. We can also charge him with conspiracy to commit treason under 18 U.S.C. 371. All we need for that is an agreement to adhere to the enemy giving aid and comfort, and any kind of an overt act, even a legal one.
No one's talking about 18 U.S.C. 2332. You murder an American outside the US, you can get up to life or even death. If you conspire, it's up to 20 years. I'm intrigued by the Spann killing. We need to get more facts from Defense and CIA, but we know that Spann interrogated Walker, then the riot broke out, Walker was wounded and Spann killed. It may be that Walker was a principal, an aider and abettor, or a conspirator. If the facts are there, I'd go with that. Especially because if we charge treason, a jury could go with the homicide instead.
My staff leans toward charging Walker with a single count of providing material support to a terrorist organization under 18 U.S.C. 2339A. But I don't like it. It's only worth ten years, maximum. Worse, the term material support hasn't been authoritatively defined by the courts, and I'm not sure that the statutory definition in 18 U.S.C. 2339B fits Walker. It seems to me that Walker didn't provide anything material to the Taliban or Al Qaeda. It was the other way around. And I don't see how conspiracy or aiding and abetting helps us here. Also, it doesn't give us much bargaining power with Walker. If he's just looking at ten years, Brosnahan might advise him to throw the dice with a jury. Poor kid, and all that devil-made-me-do-it nonsense. But if Walker's looking at death or a good many years, maybe the ten would be attractive.
Procedurally, we bring him back by air into Virginia, and we have him in a good district to try a treason case. Tough juries. That's why we have Moussaoui there.
Let's see what the staff recommends, but that's how I see it now.