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Capture sets off legal debate over status, possible punishment
12/04/2001
WASHINGTON – The capture of a pro-Taliban fighter who says he's an
American citizen touched off a legal debate half a world away, where U.S.
officials pondered his status and any punishment he might face.
At the Defense, State, and Justice departments, officials voiced
uncertainty over which branch of government would have ultimate
responsibility for any Americans found to have taken up arms on behalf
of enemies of the United States.
The debate was sparked after a man identified as 20-year-old John Philip
Walker was found among the Taliban troops and al-Qaeda fighters flushed
out of a fortress in Mazar-e Sharif by Northern Alliance troops. The
convert to Islam, who was turned over to U.S. military forces in
northern Afghanistan over the weekend, is receiving medical attention.
The government is investigating reports that two people being held by
the Northern Alliance also are Americans. "We're working through trying
to check them out," a senior U.S. government official said of the
reports, speaking on condition of anonymity.
While information on those two captives remained murky Monday night, the
military was engaged in a robust debate over Mr. Walker's status.
"If we're going to turn him over to the Justice Department, how do we do
it?" said a senior defense official, speaking on condition of anonymity,
while citing geographic and logistical considerations.
Defense officials were cautious in discussing Mr. Walker's status for
fear of triggering legal consequences. They declined to call him a
prisoner of war or describe him as being in custody, saying only that
U.S. military forces "have control of him."
"He has sustained some injuries, and he's receiving medical attention.
And anything that happens beyond that is still to be determined," Rear
Adm. John Stufflebeem said at the Pentagon.
Mr. Walker's status "has got to be decided by the policy folks," the
admiral added.
President Bush's executive order establishing military tribunals for
terrorists is limited to foreign citizens.
Scott Silliman, executive director of Duke University's Center on Law,
Ethics, and National Security, suggested that any prosecution of Mr.
Walker or other Americans in similar circumstances would end up in
federal court rather than a military court-martial.
And because the Bush administration decreed that detainees in
Afghanistan would be treated as "unlawful combatants," Mr. Silliman said
they could not be considered prisoners of war under international
conventions.
"They will not be considered prisoners of war under the Geneva
Convention, and therefore, in my judgment, that only leaves trial in our
federal district court," said Mr. Silliman, who spent 25 years as an Air
Force military lawyer.
The White House referred questions on Mr. Walker's status to the Defense
Department. At the State Department, questions were referred to the
Justice Department, which offered no immediate comment.
Under federal immigration statutes, an American can be stripped of
citizenship for serving in the armed forces of a country engaged in
hostilities with the United States. Asked whether that statute could
apply to Mr. Walker, State Department spokesman Philip Reeker said: "I'm
not here to make a legal determination for you.
"There may be some questions as to whether the Taliban forces would meet
the definition of armed forces of a foreign state in this provision of
the law," Mr. Reeker said. "It's something obviously that would have to
be looked at by the Department of Justice, by numerous lawyers."
Revoking citizenship is a lengthy process requiring the approval of a
federal court.
"You can't just do it in the twinkling of an eye," said an Immigration
and Naturalization Service official, speaking on condition of anonymity.
"The government would have to make a case this individual has acted
seditiously against the United States or in a treasonous way and present
evidence of same. And the judge would have to find in the government's
favor, which would result in the revoking of citizenship."
Mr. Walker's parents, in an interview posted Monday on the Newsweek
magazine website, identified him from photos as their son, a Washington,
D.C., native who later lived in Fairfax, Calif.
Frank Lindh and Marilyn Walker, who are divorced, said their last
contact with their son came seven months ago, when they received an
e-mail from Pakistan, where he had been studying the Quran.
Mr. Lindh described his son as a "spiritual kid" who converted to Islam
as a teenager, adopting Islamic dress and taking the name "Sulayman."
Mrs. Walker described her son as a "sweet, shy kid" who had gone to
Pakistan with an Islamic humanitarian group to help the poor.
"If he got involved in the Taliban, he must have been brainwashed," she
said. "He was isolated. He didn't know a soul in Pakistan. When you're
young and impressionable, it's easy to be led by charismatic people."
Interviewed by a Newsweek reporter after his arrest by Northern
Alliance forces over the weekend, Mr. Walker identified himself as Abdul
Hamid. He said he journeyed to Afghanistan six months ago to help the
Taliban build a "true Islamic state."
He provided an account of the Taliban prisoners' uprising at the
Mazar-e-Sharif fortress on Nov. 25, offering details that suggest he
witnessed the final moments of CIA operative Johnny "Mike" Spann – the
first known U.S. combat casualty in Afghanistan.
Mr. Walker is being debriefed, U.S. officials said.