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On Monday, John Walker Lindh's lawyers were in Virginia federal court making what lawyers call a "discovery" motion, trying to obtain information from the government bearing on their client's defense. Apparently treated as routine by the media - Associated Press ran a short wire service story; CNN had little to report - the hearing was anything but routine, especially because of one particular card the defense tried to play.


To understand the defense tactics at play in its discovery motion, we have to differentiate between different kinds of material.


Although the government has already turned over to the defense literally thousands of pages of material, Lindh's lawyers had requested thousands more. Some they will get. Much they will not.


Nearly forty years ago, in the case of Brady v. Maryland, the Supreme Court of the United States held that in a criminal case the prosecution must turn over to the defense any material in its possession, even if it only might tend to exculpate the defendant. There is no argument in the Walker-Lindh case about this so-called Brady Material. The defense knows that it is entitled to it, and the government knows its responsibility - let alone what could happen if it failed to comply with the Brady requirement. Indeed, several times at the hearing the judge reminded the prosecution of its duty to provide exculpatory material to the defense.


Lindh's lead defense lawyer also sought a more detailed indictment, in an attempt to narrow the charges against his client. The judge denied the request, reminding the defense of something they know very well: that Lindh is not charged with trying to kill specific Americans. Because the judge did not "read the indictment as pointing to a specific murder," he stated that the government was "not required to show that [Lindh] shot at Americans." On the contrary, as the Associated Press reported, the judge clearly understood that the indictment charges Lindh with "joining a broad conspiracy by al-Qaida and the Taliban to kill Americans around the world." And proof of that conspiracy requires only that there have been an agreement to do so, that Lindh was one of those who agreed, and that any member of the conspiracy committed an overt act in furtherance of that agreement - even if the act was legal unto itself.


The next piece of discovery the defense sought was "access" to someone designated as "CS [confidential source] -1." Doubtless this refers to the CIA agent, "Dave," who, with the deceased Mike Spann, interrogated Lindh when he was flushed out of the prison basement. This request introduces the concept of "graymail" - a tactic used by defense lawyers in national security cases. The idea is for the defense to seek in discovery highly sensitive material and information so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn't want). All that prevents graymail from succeeding is a judge who will decide that the sought discovery is either irrelevant or so sensitive that either the defense can't have it or, if it can have it, the material is delivered, held, and used, under carefully crafted safeguards. Since all that the defense can legitimately want from "Dave" is information about the aborted interrogation of its client, which the government is apparently willing to provide, it will be surprising if the judge allows the defense anything more than an opportunity to interview "Dave." It is unlikely that a graymail attempt to learn his identity or anything else about him will succeed.


Furthering the graymail tactic was a defense request for "access" to, and information about, the detainees being held in Guantanamo. The prosecution requested, and received, more time to sort out that one. If the government objects, the judge will probably require the defense to make a very strong showing of relevance. But even that will have to overcome what are bound to be serious national security considerations.


All in all, the defense's tactics at the discovery hearing were predictable: seek Brady Material that Lindh is entitled to, and that the government would produce anyhow; request every piece of paper in the government's possession that in any manner whatsoever has anything at all to do with Lindh; try to narrow the indictment to make the government prove what it has not alleged (and thus can't prove); and throw in a dash or two of graymail. I predict, however, that this judge will not allow the defense to go on a fishing expedition. He will make sure (though he doesn't have to) that Brady Material is provided; he will direct the government to deliver only relevant documents; he will allow the indictment, charging only an easy-to-prove conspiracy, to stand as drawn; and he will not allow the defense to succeed in its graymail game.


Next comes the defense motion to suppress Lindh's various statements.


Stay tuned.