- The Washington Times - Wednesday, December 5, 2001

The Defense Department yesterday said it has not yet decided what to do with an American captured by Northern Alliance forces in the Afghan city of Mazar-e-Sharif, where he was fighting alongside Taliban and al Qaeda soldiers.

The man, John Phillip Walker Lindh, 20, of Fairfax, Calif., could face criminal charges even of treason. He expects to be interviewed by Justice Department prosecutors and FBI agents, who could recommend his arrest and return to this country for trial.

"We found a person who says he's an American with an AK-47 in a prison with a bunch of al Qaeda and Taliban prisoners," Defense Secretary Donald H. Rumsfeld said at a Pentagon press conference. "You can be certain he will have all the rights he is due. He is being provided medical attention. He's being visited with by the people in close proximity to him, and we'll get to that in good time." Mr. Rumsfeld said there had been no confirmation that two other Americans also were being held.

"I've got lots of things that are front and center that we're dealing with at the time," he said.

Pentagon spokeswoman Victoria Clarke acknowledged that U.S. officials have talked with Mr. Lindh, but did not elaborate. He received bullet and grenade wounds in the uprising.

Legal analysts say Mr. Lindh and the others, if confirmed to be U.S. citizens, face return to this country, where they could be brought to trial in a federal court.

Former Defense Department lawyer Jed Babbin, now in private practice in Washington, said while it was "premature" to decide what to do, a trial in this country probably in U.S. District Court in Alexandria, where many national security cases are heard is a distinct possibility.

"There are two questions that certainly need to be answered: Did these men forfeit or renounce their U.S. citizenship or are they still U.S. citizens?" Mr. Babbin said. "If they renounced their citizenship, they probably can be handed over to the Northern Alliance and be tried as war criminals. If they are still U.S. citizens and they bore arms against this country, that would be a prima facie case of treason."

Mark L. Levin, chief of staff to Edwin Meese III when he was the attorney general in the Reagan administration, said that as a general proposition, when a U.S. citizen participates in acts of war against the United States, "you have a quintessential case of treason."

"The plain words of the U.S. Constitution, Article III Section 3, describe treason as 'levying war against' the United States 'or adhering to their enemies, giving them aid and comfort,'" he said.

The Constitution prescribes that two witnesses must testify against someone for treason. Mr. Lindh has made public statements indicating his support for the September 11 attacks, as well as the attack on the USS Cole in which 17 crew members were killed last year. Those statements are part of the public record and could be used in a criminal case against him.

Jonathon Turley, a constitutional and national security law professor at George Washington University, says prospects for Mr. Lindh are not good.

"I don't think [two witnesses] are going to be necessary," Mr. Turley said. "I suspect there will be a fair amount of individuals who would want to cooperate with the United States … Mr. Walker [Lindh] could not have picked a worse time to appear on the docket with the charge of treason."

The punishment for treason can be death. Under federal law, it is a crime for anyone "owing allegiance to the United States" to wage war against this country or to help its enemy.

Mr. Lindh, who was born in at Columbia Hospital for Women in Washington, was identified through video clips by his parents, who told CNN he had followed his faith to Afghanistan to help build a "pure Islamic state." After his capture, he was turned over to U.S. special operations troops, who continued yesterday to negotiate with Northern Alliance commanders for two more Taliban soldiers who also claim to be Americans. Their names were not immediately known.

Mr. Lindh, who is believed to have been in Afghanistan for the past six months, was one of 86 Taliban and al Qaeda soldiers who survived a bloody insurrection at the Qala-I-Jangi fortress, where 600 others died in a hail of U.S. bombs and Northern Alliance gunfire. CIA agent Johnny "Mike" Spann was killed by a Taliban prisoner.

Justice Department authorities said Mr. Lindh cannot be tried by a military tribunal, since President Bush's order creating the tribunals specifies that the tribunals are only for aliens.

Mr. Lindh's father, Frank, has hired San Francisco lawyer James Brosnahan and is looking to visit his son. Repeated calls to Mr. Brosnahan were not returned.

Mr. Lindh's family described him as a boy who preferred Matchbox cars to GI Joes, but said he eventually became a soldier himself, in a holy war against the United States. That led him to the Islamic fundamentalist Taliban in Afghanistan.

Still in shock over how the "shy, sweet kid" they knew took up arms against his country, his family said they last saw him in February 2000 when he left for Yemen to study the Muslim faith. Raised a Roman Catholic, he converted to Islam four years ago and also is known as Abdul Hamid or Suleyman Al-Lindh. The elder Mr. Lindh told The Washington Times his son's goal was to attend the University of Medina in Saudi Arabia.

"I supported that, I gave him my blessing," said the father, who moved with his family from Maryland to Fairfax, Calif., 10 years ago. Mr. Lindh and his mother, Marilyn Walker, divorced three years ago.

The family has not been in contact with him since June and was shocked when they first saw the reports on Saturday he was involved in the prison uprising. They had no idea he was in Afghanistan, Mr. Lindh said.

"It's obviously very surprising and I am very concerned for his parents and for John," said Robert Soloman of Silver Spring, who knew the younger Mr. Lindh in Silver Spring. "John was a sweet, smart and bright child, the type of kid you would like to be a friend for any child."

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