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( Published January 16, 2002)



Chapter 1 in the tale of John Walker began when CNN broadcast photos and an interview with the filthy, wounded Taliban/al-Qaeda fighter. It ended with his transfer to first one Navy ship and then another in the Arabian sea.


Chapter 2 has consumed us for the past several weeks, while the public and press debated and speculated over what Walker could, and should, be charged with. I have written here and elsewhere that while a treason indictment and conviction was not nearly as difficult as some have claimed - and that Walker should be indicted for that crime - in light of the unwillingness shown by successive American administrations to charge treason, against even the Rosenbergs and renegade American intelligence agents, I doubted that Walker would be so charged. I ruled out trial by military tribunal. Instead, it seemed to me that a good charge, in a federal district court, would be under 18 United States Code 2332 and 18 United States Code 371: conspiracy to kill Americans. Another possibility I raised was providing "material support" to a terrorist organization, either as a principal or an aider and abettor or a conspirator. And I believed the Moussaoui prosecution laid by the government in Alexandria, Virginia, portended that's where Walker would be tried.


Chapter 3 began on Tuesday, with Attorney General Ashcroft's announcement of the filing of a criminal complaint against Walker in that very federal district. Significantly, Walker has been charged under 18 U.S.C. Sections 371 and 2332 for engaging "in a conspiracy to kill nationals of the United States . . . engaged in the ongoing conflict in Afghanistan." He has also been charged, in two counts, under 18 U.S.C. Sections 2339B, 371 (conspiracy), and 2 (aiding and abetting) with providing material support to the foreign terrorists organizations Harakat ul-Mujahideen and al-Qaeda (even though Section 233B lacks authoritative judicial construction). (The fourth, and last, charge of the complaint alleges that Walker provided blocked goods and services to the Taliban - a crime paling in comparison to the other three). Although none of the charges carry the death penalty, Walker is looking at a potential life sentence.


The facts supporting the government's criminal complaint against Walker fall into three categories. First, his own admissions. Next, his interview by CNN. Last, "preliminary reports of U.S. military and other personnel, as well as media accounts," concerning the prison uprising.


In Walker's admissions to the FBI (legitimized by his oral and written waiver of whatever Miranda rights he may have had at the time), he stated that he:


attended a training camp run by terrorists;

met with Usama Bin Laden at least once;

deployed with other al-Qaeda fighters on a front line opposing the Northern Alliance;

trained with firearms and explosives, in battlefield combat, and for "special missions";

opted to fight in Afghanistan, on the front lines;

was told that the group to which he would be assigned was Bin Laden's;

heard lectures from Bin Laden;

was thanked by Bin Laden for taking part in jihad;

knew then that Bin Laden and al-Qaeda were "against America" and that "al-Qaeda's purpose was to fight Americans";

learned in early June 2001 from an instructor "that Bin Laden had sent people to the United States to carry out several suicide operations";

understood on September 11 or 12, 2001, "that Bin Laden had ordered the attacks [on the Pentagon and World Trade Center] and that additional attacks would follow";

told his CIA interrogators that he was a Pakistani.


In his interview with CNN, which largely corroborates his statements to the Federal Bureau of Investigation, Walker stated that he: was a member of "Ansar," the Arab fighters who are funded and supported by Bin Laden;

saw Bin Laden several times in the training camps.


As to Walker's role in the prison uprising and death of Mike Spann,

the government believes that the following are the facts:

Spann and another agent were interrogating detainees;

Spann photographed Walker, and one picture of him was recovered;

afterwards, "a mass of prisoners converged upon Spann";

Spann was killed;

Walker was shot in the leg during the melee;

He and other prisoners retreated to the compound's basement, where they remained for several days.


It is these facts that constitute the spine of the government's case against John Walker, and if proved it is these facts that will enable a jury to find him guilty.


Conspiracy is proved by evidence showing an agreement to do something illegal (e.g., killing Americans in general, and/or Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). "The act in furtherance of the conspiracy" can even be something wholly legal (e.g., marching).


Providing material support to terrorists is proved by evidence showing either direct assistance, or less direct aid to them coupled with the intent that they succeed. Conspiracy to provide material support is proved by evidence of an agreement to provide that support, and any overt act in furtherance.


However, even though in these charges Walker is facing life in prison, there may be more in store for him. Attorney General John Ashcroft made it quite clear at his Tuesday press conference that the government has not closed the door on charging Walker with treason. Indeed, many of the acts recited above that serve as the predicate for the charges already brought against Walker could easily constitute acts of treason, and his intent to betray the United States could easily be inferred by a jury from those acts. For a treason prosecution, that would leave only two more elements. One, "aid and comfort," would not be hard to find. The last, two-witness proof is something that the Attorney General alluded to at the press conference. One had the impression from Ashcroft's remarks that if any Taliban/al-Qaeda prisoners - or anyone else, for that matter - possessed first-hand information about Walker's acts, a treason prosecution might well be in the offing.


That, and other issues, will have to await Chapter 4.