7 February 2002
Source: Digital file purchased ($1.00 per page) from Norman B. Linnell, Official
Court Reporter, US District Court, Eastern District of Virginia. Telephone:
(703) 549-4626. No restriction on public information use and reproduction
-- but not for DMCA-copyright-thieving resale.
See related:
Complaint, January 15, 2002: http://cryptome.sabotage.org/usa-v-jwl-hit.htm
Initial appearance, January 24, 2002: http://cryptome.sabotage.org/usa-v-jwl-ia.htm
Grand Jury indictment, February 5, 2002: http://cryptome.sabotage.org/usa-v-jwl-gji.htm
1
1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
2 Alexandria Division
3
4 -------------------------------:
:
5 UNITED STATES OF AMERICA :
:
6 :
-vs- : Cr. No. 02-37-A
7 :
:
8 JOHN PHILIP WALKER LINDH, :
Defendant. :
9 :
-------------------------------:
10
11
12 DETENTION HEARING
13
February 6, 2002
14
15 Before: W. Curtis Sewell, Judge
16
17
18
19 APPEARANCES:
20 Paul J. McNulty, Randy I. Bellows, David N. Kelley and
John S. Davis, Counsel for the United States
21
22 James J. Brosnahan, William B. Cummings, George C. Harris,
D. Anthony West and S. Raj Chatterjee, Counsel for Defendant
23
24 The Defendant, John Philip Walker Lindh, in person
25
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
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1 THE CLERK: The United States of America versus
2 John Philip Walker Lindh, case number 02-37-A.
3 THE COURT: Good morning, gentlemen.
4 MR. BELLOWS: Good morning, Your Honor.
5 MR. BROSNAHAN: Good morning, Your Honor.
6 MR. CUMMINGS: Good morning, Your Honor.
7 MR. BELLOWS: Good morning, Your Honor.
8 THE COURT: Mr. Bellows.
9 MR. BELLOWS: Paul McNulty, Randy Bellows, David
10 Kelley and John Davis on behalf of the United States.
11 THE COURT: All right. Mr. Brosnahan.
12 MR. BROSNAHAN: Good morning, Your Honor. Jim
13 Brosnahan for defendant John Lindh. With me is George
14 Harris, Tony West, Bill Cummings and Raj Chatterjee.
15 THE COURT: All right.
16 MR. BROSNAHAN: And the defendant is present in
17 court.
18 THE COURT: All right. Good morning. Have a seat,
19 gentlemen.
20 The matter is before the Court on the Government's
21 motion for detention. I have before me the pleadings of the
22 defendant, the memorandums. I have reviewed the appendix of
23 nonlegal documents. And I have read No. 7, which is the CNN
24 interview.
25 I have read the Government's opposition.
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1 And I also have before me the Pretrial Services
2 report.
3 Has the Government evidence other than that
4 previously presented on the issue of detention?
5 MR. BELLOWS: No, Your Honor. The Government is
6 relying on the affidavit, the indictment that has been
7 returned yesterday in this district, and the additional facts
8 that are proffered in the Government's memorandum.
9 THE COURT: Okay. Mr. Brosnahan, evidence or
10 proffer other than that previously submitted on behalf the
11 defendant?
12 MR. BROSNAHAN: Yes, Your Honor. We will not be
13 duplicating anything. We would call Agent Asbury, who is in
14 the front row. Thank you.
15 THE COURT: Any objection from the Government? Mr.
16 Kelley?
17 MR. KELLY: None, Your Honor.
18 THE COURT: Okay. All right. The witness will
19 come forward and be sworn.
20 NOTE: The witness is sworn.
21 THE COURT: All right. While the witness is having
22 a seat, Mr. Brosnahan, I don't want to revisit the issue of
23 probable cause.
24 MR. BROSNAHAN: Yes, Your Honor.
25 THE COURT: Nor do I want to go into matters not
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1 relevant for the detention hearing.
2 MR. BROSNAHAN: Yes, Your Honor.
3 THE COURT: Conditions of confinement in
4 Afghanistan I don't believe are relevant for this hearing.
5 MR. BROSNAHAN: Yes, Your Honor.
6 THE COURT: Okay.
7 MR. BROSNAHAN: Your Honor will find me completely
8 following Your Honor's indications.
9 THE COURT: All right.
10 MR. BROSNAHAN: I understand there to be two
11 issues: One is concern about flight; and the other is the
12 seriousness of the charges and what they are all about. And
13 that's--
14 THE COURT: Well, danger to the community is an
15 issue for detention.
16 MR. BROSNAHAN: Yes.
17 THE COURT: The charges themselves are a factor to
18 be considered by the Court.
19 MR. BROSNAHAN: I understand. I will try very hard
20 to follow that line.
21 THE COURT: All right. Thank you, sir.
22 MR. BROSNAHAN: Thank you.
23 ANNE ASBURY, called by counsel for the defendant,
24 first being duly sworn, testifies and states:
25 DIRECT EXAMINATION
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1 BY MR. BROSNAHAN:
2 Q. Could you tell us your-- Have you been sworn?
3 A. Yes.
4 THE COURT: She has.
5 Q. Thank you.
6 Could you tell us your full name, please.
7 A. My name is Anne Asbury.
8 Q. And have you been with the FBI since 1991?
9 A. Yes, I have.
10 Q. And did you go to Afghanistan in connection with
11 this matter?
12 A. Yes, I did.
13 Q. When did you go there?
14 A. I arrived in Afghanistan on January 22.
15 Q. And was that the first time that you had been
16 there?
17 A. Yes.
18 Q. And with regard to this particular matter, you
19 filed an affidavit, is that correct?
20 A. Yes, sir.
21 Q. And in that affidavit you relied upon the
22 statements of an FBI agent who had filled out what is
23 referred to as a 302, is that correct?
24 A. Yes.
25 Q. And is it true that when Mr. Lindh was interrogated
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1 by the FBI agent, no videotape was made of that
2 interrogation?
3 A. To my knowledge. I don't know. I don't think so.
4 Q. And is it true that during the interrogation of
5 John Lindh, who is seated here, that no audio tape was made
6 of what the FBI agent was saying and what Mr. Lindh was
7 saying?
8 A. To my knowledge, no, there was not.
9 Q. Is it true that no statement was written out and
10 shown to Mr. Lindh so that he could make any corrections that
11 might be needed?
12 A. With reference to the interview, to my knowledge,
13 no.
14 Q. And is it true that the only thing that we have
15 from the FBI is a 302 that was dictated on the 13th of
16 December?
17 A. With regard to the interview of Mr. Lindh, yes.
18 Q. And is it true that the FBI was in there on the 9th
19 and the 10th?
20 A. Yes, that's correct.
21 Q. And is it true that it is the regular custom and
22 practice of the FBI when doing interviews, over many years
23 this has been the practice, to send two agents?
24 Yes or no, please.
25 A. No, I don't think so.
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1 Q. Have you participated in many interviews where
2 there were two agents?
3 A. Yes.
4 Q. And is it true that in this case only one agent was
5 sent to interview Mr. Lindh?
6 A. To my knowledge, yes.
7 Q. And was it true that when the one agent went, the
8 agent was aware that Mr. Lindh had a right to counsel?
9 A. Yes, that's correct.
10 Q. And was it true that when the agent went, the agent
11 was aware that counsel had been retained by Mr. Lindh's
12 parents for him?
13 MR. KELLY: Objection, Your Honor. I think this is
14 going beyond the scope of what the Court described.
15 THE COURT: Sustained, Mr. Brosnahan.
16 MR. BROSNAHAN: Yes, Your Honor, I understand.
17 BY MR. BROSNAHAN: (Continuing)
18 Q. Now, in your affidavit you made statements about al
19 Qaeda. Do you recall those?
20 A. Yes.
21 Q. Did you draft your affidavit?
22 A. No.
23 Q. You just did it at one sitting?
24 A. No, I--
25 MR. KELLY: Objection.
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1 THE COURT: I think she said she did not draft it.
2 BY MR. BROSNAHAN: (Continuing)
3 Q. Okay. Who-- Did someone else address it?
4 MR. KELLY: Objection, Your Honor.
5 MR. BROSNAHAN: I misunderstood.
6 THE COURT: What is the objection of the
7 Government, please?
8 MR. KELLY: It is really not relevant, Your Honor.
9 What is is the fact that she is an affiant who swore to the
10 statements contained in that affidavit.
11 THE COURT: What is the relevance, Mr. Brosnahan?
12 MR. BROSNAHAN: The Government is offering the
13 affidavit and the evidence. Indeed, the Attorney General of
14 the United States yesterday told the nation that based on
15 this testimony that we are hearing now for the first time,
16 that the defendant posed a threat.
17 And, therefore, it goes directly to bail.
18 THE COURT: That might be the Attorney General's
19 view, but the view that is important this morning is my view.
20 MR. BROSNAHAN: That's right, Your Honor.
21 THE COURT: That's based upon the indictment.
22 MR. BROSNAHAN: I agree with that.
23 THE COURT: And not the affidavit. The affidavit
24 was given in support of the complaint, but the indictment
25 stands separate, and it is a separate finding of probable
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1 cause.
2 MR. BROSNAHAN: Okay. May I go--
3 THE COURT: I sustain the objection.
4 MR. BROSNAHAN: May I go to another subject, Your
5 Honor?
6 THE COURT: Yes, sir.
7 MR. BROSNAHAN: Thank you.
8 BY MR. BROSNAHAN: (Continuing)
9 Q. Where is the district of Takhar?
10 MR. KELLY: Objection.
11 MR. BROSNAHAN: May I put up a map, Your Honor?
12 THE COURT: What purpose does-- I presume it is a
13 map of Afghanistan. What purpose does--
14 MR. BROSNAHAN: I offer it to show that John Lindh
15 is not a dangerous person. This is the first appearance we
16 have had in court, and I offer to show as follows: John
17 Lindh is not a dangerous person.
18 John Lindh was with the Taliban and fought in the
19 district of Takhar, arriving there on the 6th of June -- 6th
20 of September rather of last year, and staying there until the
21 line broke and they retreated and surrendered.
22 I offer to prove that he is not a dangerous person.
23 THE COURT: But these are matters set forth already
24 in your pleadings. And what purpose would my looking at a
25 map serve?
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1 I mean, I am generally familiar with the geography
2 of Afghanistan.
3 MR. BROSNAHAN: Well, if the Court please, I would
4 like to establish through the witness that it is true that
5 John Lindh went to the front lines in the district of Takhar,
6 which is in the northern part of it.
7 And the relevance, if the Court please, is that the
8 bombing there that is referred to in the evidence did not
9 occur until the 6th of November.
10 That he was in the district of Takhar. He wasn't
11 any other place in Afghanistan. Whatever else was going on
12 there, he was not privy to it. And the Government, and I
13 think this witness, is aware through the affidavit and
14 otherwise that that is true.
15 That he was fighting with the Taliban. That the
16 Taliban has a history. And that he was fighting the Northern
17 Alliance.
18 That I offer to prove, and I can do this by
19 proffer, or however you want--
20 THE COURT: I will accept the statements of counsel
21 as a proffer on behalf of the defendant.
22 MR. BROSNAHAN: Let me do that then, that would
23 speed it up too, and I am happy to do it.
24 Here is the proffer, if the Court please. John
25 Lindh was transported to the front lines to fight the
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1 Northern Alliance on the 6th of September of last year, 2001.
2 He went to the front lines, and was there in the
3 front lines until they broke in early November when there was
4 a massive assault by the Northern Alliance.
5 I offer to prove by way of proffer for purposes of
6 bail, that the Northern Alliance is composed of former
7 enemies of the United States, of which General Dostum is one
8 of the leading enemies of the United States.
9 I offer to prove that at the time that he went
10 there on the 6th, Mr. Lindh was aware that the Northern
11 Alliance were, I'll just use the term for this purpose, bad
12 people. They had been communists, they had been with the
13 communist government.
14 And in fact, they were on the other side of the
15 war-- I won't go into this very deeply. But in the 1980s,
16 the United States Government supported the Mujahideen against
17 the Northern Alliance.
18 The relevance of this, Your Honor, is not just
19 historical. The relevance--
20 THE COURT: I don't want to get into argument.
21 MR. BROSNAHAN: No, it is a proffer.
22 THE COURT: I will accept the proffer, then I will
23 hear argument later.
24 MR. BROSNAHAN: I understand. This is the proffer.
25 Mr. Harris is going to make the argument. That may have
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1 sounded like argument.
2 THE COURT: It sounded--
3 MR. BROSNAHAN: It was getting there, wasn't it?
4 THE COURT: Oh, I think it was there.
5 MR. BROSNAHAN: The facts are as follows. I know
6 how to do it properly, if the Court please.
7 The facts are that the Northern Alliance because it
8 had this history, was not any group that the United States
9 government would embrace even after September 11.
10 The proffer is that the highest officials of the
11 United States government when questioned during October and
12 November as to whether they were going to embrace the
13 Northern Alliance said they hadn't made up their mind.
14 The proffer is that until early November, just
15 before the bombing started in the north, the United States
16 Government had not taken sides with the Northern Alliance,
17 which is the only group that John Lindh ever fought. John
18 Lindh was on the front lines against the Northern Alliance.
19 The proffer includes the fact that as to the
20 Taliban-- and that's who he was with. He never fought with
21 al Qaeda. The proffer is he never fought with al Qaeda. He
22 never signed up for terrorist activity. He never had
23 anything to do with terrorist activity.
24 The proffer is, and the Government has not offered
25 anything otherwise by way of fact, the proffer is that as to
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1 the Taliban, Mr. Lindh was aware that the United States
2 government had dealings with the Taliban during the year
3 2001.
4 During the year 2001 the United States government
5 supplied the Taliban on May 18 with $43 million in what it
6 called humanitarian aid. The proffer will be that that was
7 for the purpose of eradicating the poppy population.
8 The proffer includes the fact that during the
9 fiscal year, which is in the government, it used to be when I
10 was an Assistant U.S. Attorney, I assume it still is July 1,
11 from July 1 through the following July 1, 2001, the U.S.
12 government supplied to the Taliban $123 million. That in the
13 prior fiscal year they supplied $140 million. And that the
14 defendant was aware of that.
15 So that when he took up his position on the front
16 line, he knew that he was fighting against people that were
17 not liked by the American government, that's the Northern
18 Alliance. And he knew that those people that he was with had
19 had financial dealings and other dealings with the Taliban
20 that he was with.
21 The proffer includes the fact that when John Lindh
22 was on the line as of the 10th of September, the proffer is,
23 as you would expect, that there was not a single person in
24 the United States government that had any idea that we would
25 be engaged in military operations within the country of
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1 Afghanistan.
2 The proffer will include the fact that even in
3 September and October the U.S. government had not committed
4 itself until the 7th of October to military options within
5 the state of Afghanistan.
6 And in fact the proffer includes, this is all
7 public record, I think the Government will not deny it, the
8 proffer is that during September and October demands were
9 made by our President as to the Afghani government that
10 included the turning over of Usama Bin Laden and other
11 conditions.
12 The proffer includes the reality of that situation
13 that had those conditions been met, there would have been no
14 military intervention in Afghanistan and the Taliban would
15 have been left, and there are public statements in September
16 at least to this effect, they would have been left to fight
17 the Northern Alliance. And Mr. Lindh would not be sitting in
18 this court had that occurred.
19 The proffer includes the fact that Mr. Lindh at all
20 times intended to go to the front lines. The proffer
21 includes the fact-- And I realize, Your Honor, that in a
22 bail hearing it is hard to know what you are going to put
23 weight on. But if Mr. Lindh was accused of a crime here in
24 Alexandria and it was a federal crime and Your Honor was
25 listening to the lawyer, the lawyer would say that this young
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1 man has never been in trouble before.
2 THE COURT: All right.
3 MR. BROSNAHAN: He has never been in trouble
4 before. He is from Marin County in California.
5 The proffer would include the fact that he doesn't
6 drink. He doesn't take drugs.
7 The proffer would include the fact that he is a
8 religious person. That he follows the teaching of his
9 church. It is not my church, but he follows the teachings of
10 the church, the church that he has adopted.
11 Those things we think are suitable to put into the
12 proffer -- to the proffer.
13 I think finally, Your Honor, because I sense that,
14 quite rightly, Your Honor is looking for the heart of it and
15 not for exploratory examination of the agent, I understand
16 that, I would like to close with a proffer with regard to the
17 interrogation.
18 The interrogation began approximately on December
19 1--
20 THE COURT: What relevance does the interrogation
21 have here? That is subject to a Rule 12 motion to suppress
22 or--
23 MR. BROSNAHAN: It is. And we are not seeking to
24 litigate that in that way here.
25 It is relevant because this is I think, perhaps in
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1 Your Honor's experience, an extraordinarily unusual case.
2 This is argument, if the Court please. But the reason is
3 there is no reference to a living witness against John Lindh
4 on any subject. The only basis for the case are statements
5 taken by him under the conditions, some of which are
6 enumerated in the memo. And Your Honor has already read
7 that.
8 But the facts in that memo with regard to how he
9 was interrogated, what happened, indeed the fact that there
10 is only one agent in there talking to him, these are things
11 that tend to reduce the idea that he is a dangerous person.
12 The final point--
13 THE COURT: They may be relevant on the issue of a
14 motion to suppress--
15 MR. BROSNAHAN: Yes.
16 THE COURT: But I have before me a finding of
17 probable cause. The indictment, Count 10, invokes a
18 presumption in favor of the Government. And I have to deal
19 with the facts which might rebut the presumption.
20 I don't find the circumstances of the interview
21 such that it may rebut the presumption. I don't want to get
22 into the interview. It is just not relevant here.
23 MR. BROSNAHAN: Yes, Your Honor, I understand. May
24 I saw one more thing and turn it over to Mr. Harris, who
25 would like to make our legal argument with regard to the
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1 bail, and he is quite prepared to do that.
2 THE COURT: Yes, sir.
3 MR. BROSNAHAN: The point I want to make is that
4 Mr. Lindh was born and raised in Washington, the first ten
5 years of his life when he was a kid. And then the last years
6 of his life up to this point were spent in California until
7 he went to Yemen the second time in the year 2000. He has
8 parents there who are in the courtroom.
9 Any defendant is lucky in a criminal case to have
10 his parents there. I just wanted to make one point--
11 THE COURT: I apologize for continuing to interrupt
12 you, but I do have the Pretrial Services report before me.
13 MR. BROSNAHAN: Yes, Your Honor. But here is my
14 point. The suggestion from the Government is that he doesn't
15 have a lot of ties to this district. That is not an argument
16 Your Honor ought to pay any attention to because they brought
17 him to this district for whatever reasons they have. I am
18 not privy to their reasons.
19 It is a good district, there are good people here,
20 I like this district, it is a nice place and I enjoy being
21 here, and the people here, I like all of that, but his home
22 is in California.
23 And for the Government to say, you know, he doesn't
24 have any ties to the district we decided to fly him into
25 under tight security, I say that that is not such a terrific
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1 argument.
2 I am going to sit down, Your Honor. Thank you,
3 Your Honor.
4 THE COURT: All right. Has the Government
5 cross-examination on the witness?
6 MR. KELLEY: We would have no cross, Your Honor.
7 So, we would ask that the witness be excused.
8 THE COURT: All right. Thank you. The witness may
9 step down.
10 Thank you very much, Miss Asbury.
11 MR. BROSNAHAN: Thank you, Miss Asbury.
12 NOTE: The witness stood down.
13 THE COURT: All right. I will hear argument from
14 the Government first, and then I will hear from you, Mr.
15 Harris.
16 Mr. Bellows.
17 MR. BELLOWS: Your Honor, as the Court notes--
18 THE COURT: I have read your opposition. And I may
19 comment too that the motion of the defendant for release was
20 filed before the indictment.
21 MR. BELLOWS: Yes.
22 THE COURT: And they were at a bit of a
23 disadvantage because they were not dealing and did not
24 address some of the issues that have to be addressed this
25 morning.
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1 So, I am mindful of that. We don't need to revisit
2 that issue.
3 MR. BELLOWS: Right. And I will be brief, Your
4 Honor.
5 First to begin with, obviously this is a
6 presumption case, as the Court notes. And, therefore--
7 THE COURT: That's what you said last time, Mr.
8 Bellows.
9 MR. BELLOWS: I know, Your Honor. It really is
10 now. And there are four factors under 3142(g) that obviously
11 the Court must consider. If I could talk briefly about them.
12 First, the nature and the circumstances of the
13 offense charged. This is, compared to what often results in
14 detention, this is one, certainly among the most serious
15 indictments this Court has ever confronted. Not only ten
16 felony offenses, but Count 1 being a conspiracy to murder
17 U.S. nationals. Certainly that is among the gravest crimes
18 that a U.S. citizen could be charged with. And it certainly
19 is a crime of violence.
20 He is also charged with three separate counts, each
21 of which carry a maximum penalty of life in prison. As well
22 as the 924(c) count, which is, as the Court knows, a 30-year
23 mandatory minimum.
24 The circumstances beyond the names of the counts
25 themselves, the circumstances of the crimes inherently
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1 establish that John Lindh is a danger to the community and a
2 flight risk.
3 He left the country and his family for almost two
4 years. He joined multiple foreign terrorist organizations.
5 He became a front line soldier with his fellow al Qaeda
6 members.
7 And the circumstances of this case create an
8 overwhelming presumption of his dangerousness.
9 The second factor is the weight of the evidence.
10 As we note in our pleadings, the defense calls it slim--
11 THE COURT: I have limited Mr. Brosnahan from
12 presenting argument on the weight of the evidence, and I am
13 also going to limit the Government.
14 There is probable cause, nothing more, nothing
15 less.
16 MR. BELLOWS: Yes, Your Honor.
17 THE COURT: So, I am not interested from the
18 Government what I would not permit Mr. Brosnahan to produce.
19 MR. BELLOWS: Right. The only point I would note
20 on that, Your Honor, is the Government's evidence is not
21 solely limited to the statements.
22 THE COURT: I am aware of that. We have probable
23 cause.
24 MR. BELLOWS: Third, Your Honor, there is the
25 history and characteristics of the person. And I believe we
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1 have demonstrated in our pleading that this is an individual
2 through all the e-mails and the letters that we have
3 proffered to the Court who has expressed his hostility
4 towards the United States, his desire not to come back to the
5 United States, not to see the United States again. Despite
6 numerous entreaties from his family, he refused to come back.
7 And he just disappeared.
8 The Pretrial Services report suggests that the
9 parents want to be custodians for John Walker Lindh. The
10 record establishes that Lindh cannot be trusted to obey them
11 or obey the Court given the fact that he disappeared, that he
12 did not stay in contact, that he went there in the first
13 place ostensibly to study and ended up becoming a terrorist.
14 The final point, Your Honor, is the nature and
15 seriousness of the danger posed by release. Our view is that
16 John Lindh is a committed terrorist who not only talked the
17 talk but walked the walk, carried hand grenades, carried
18 shoulder weapons. Took up front line with what he called his
19 al Qaeda brothers. And that he can only be viewed by this
20 Court as the most dangerous sort of person.
21 So, therefore, we do ask that he be detained.
22 THE COURT: All right. Mr. Harris.
23 MR. HARRIS: Good morning, Your Honor.
24 THE COURT: Good morning, sir.
25 MR. HARRIS: I understand that Your Honor has our
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1 papers and our proffer, and I am going to try not to repeat
2 the things that are in those papers.
3 And I am also aware that since we filed those
4 papers an indictment has been returned and that a grand jury
5 has found probable cause.
6 I submit, Your Honor, though that the weight of the
7 evidence case -- weight of the Government's evidence in this
8 case is still very relevant to this proceeding for two
9 reasons.
10 All right. First of all, the institute, 3142(g),
11 specifies the weight of the evidence as one of the four
12 factors Your Honor should consider.
13 THE COURT: But isn't that more applicable when a
14 determination of probable cause is made?
15 Ordinarily if the Court hears a detention motion
16 and also is making a determination of probable cause, isn't
17 that more of a factor then than now when the grand jury has
18 returned an indictment?
19 I mean, probable cause is a fact. It is a fact
20 that I have to accept, the Government and the defendant has
21 to accept.
22 MR. HARRIS: Your Honor, I am not saying--
23 THE COURT: I am not trying to argue with you, but
24 I just-- I am not particularly interested in hearing
25 argument on weight of the evidence because the thrust of the
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1 defendant's argument is that statements may be determined
2 inadmissible. But that's not before the Court now. And that
3 the proffer, if accepted by the Court, would suggest that
4 perhaps the defendant is not culpable of the charges alleged.
5 But the fact is there is probable cause to believe
6 that he is.
7 MR. HARRIS: Well, first of all, Your Honor, I
8 would say that certainly the fact of the indictment is
9 something you can take into consideration. But the statute
10 doesn't make that distinction. It doesn't say, consider the
11 weight of the evidence only if an indictment has not been
12 returned.
13 I think it is particularly important here--
14 THE COURT: I will accept your argument, but for
15 purposes of this hearing, I consider the weight to be
16 probable cause. Nothing more, nothing less.
17 MR. HARRIS: Okay. But, if I may, the other reason
18 why I think we need to look very carefully at the allegations
19 of the affidavit that supported the complaint, which the
20 Government still relies on, they say in their papers we are
21 relying on the allegations of that affidavit, and exactly
22 what is alleged in the indictment-- Which, by the way, the
23 overt acts alleged by the Government in the indictment track
24 almost directly the affidavit. I think we need to look very
25 carefully at those statements and the weight of those
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1 statements and the evidence that they are based on because
2 the Government has no other allegations of dangerousness.
3 THE COURT: We don't know what the evidence will
4 be.
5 MR. HARRIS: Well, we have a probable cause
6 hearing-- Yes, the grand jury has found probable cause. We
7 also have a hearing on dangerousness today. And the
8 Government has submitted nothing other than the affidavit
9 that supported the complaint.
10 We don't hear anything-- I think it is uncontested
11 that Mr. Lindh has no criminal record of any kind. No prior
12 conduct that would indicate any tendency to violence.
13 But what I am saying, Your Honor, is I want to look
14 at the allegations of the affidavit and the indictment even
15 accepting them as true.
16 THE COURT: Go ahead.
17 MR. HARRIS: Because I don't think that, if we do
18 that, they support the Government's allegations, the
19 Government's conclusions that this is a dangerous person.
20 And I think, you know, there is a lot of rhetoric
21 that surrounds those allegations. There are things that
22 counsel have said, there are things that representatives of
23 the Justice Department have said, but I want to focus on
24 exactly what those factual allegations are.
25 So, I think we need to look at the substance of
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
25
1 them, you know, if they were true-- And I would submit, I am
2 not going to reargue the conditions under which the
3 statements were taken, you know, but I would say this. I
4 think it is relevant here to the weight of the evidence when
5 we have nothing but, nothing that the Government has produced
6 to show dangerousness, I am not talking about probable cause,
7 but dangerousness, nothing but the uncorroborated hearsay
8 statement of one agent talking about what was presumably said
9 by Mr. Lindh to another agent under what I have to describe
10 as outrageously coercive circumstances, which the Government
11 has not denied in their responding papers. Okay.
12 They have one response in those responding papers.
13 They say, on December 5 we have a military report that he got
14 three meals. Right.
15 If you read our proffer, that's exactly what
16 happened. He had been interrogated under coercive
17 conditions. He cooperated with those interrogators, no
18 warning of counsel. His conditions improved.
19 Then he was flown to Camp Rhino. It was at that
20 point that he was put blindfolded, naked, strapped to that
21 stretcher in that metal shipping container. And, you know,
22 this is not uncorroborated. We have shown Your Honor--
23 THE COURT: Mr. Harris, you would be better advised
24 to address the issues of how the defendant rebuts the
25 presumption in favor of the Government.
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
26
1 MR. HARRIS: And I will address--
2 THE COURT: We are just not going there any
3 further.
4 MR. HARRIS: Okay. I will address that, Your
5 Honor. But simply, my point is simply that they are relying
6 on that affidavit and those statements solely for their
7 finding by this Court that this is a dangerous person.
8 And I think the circumstances, the reliability of
9 those statements, I am not arguing admissibility, I am not
10 arguing a suppression motion, but the reliability of them I
11 think is at issue.
12 THE COURT: I disagree with what the Government is
13 relying on, but go ahead.
14 MR. HARRIS: Okay. And if I may, let me just
15 address the burden issue. And then I would, if I may, I
16 would like to get back to again what the actual allegations
17 of the affidavit are and whether they support dangerousness.
18 Because, first of all, yes, the Government has now
19 added a 924(c) charge as enhancement, you know, using a
20 firearm in a crime of violence.
21 As the Government admits, the complaint as filed
22 last week did not create a presumption, but now this charge
23 has been added.
24 First of all, Your Honor, of course that
25 presumption is rebuttable.
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27
1 And, secondly, and we have cited cases in our
2 papers, this is note nine at page 5, that presumption shifts
3 the burden of production, but it does not shift the burden of
4 persuasion. That remains on the Government.
5 And we have met that burden of production, I would
6 submit. We have made proffers with regard, both in our
7 papers and today orally to rebut that presumption.
8 I think the presumption is also only as strong as
9 the weight of the evidence supporting the charges and the
10 actual allegations of the charges on which it is based.
11 Now, it is using a firearm while committing a crime
12 of violence. And the Government argues that not only Count
13 1, but several other counts are crimes of violence.
14 I think that is not right, Your Honor. If you look
15 at the law, the crime of violence is based on the nature of
16 the offense.
17 And really all of the other things alleged in the
18 indictment are crimes that indeed were designed primarily to
19 prevent financial support to certain designated
20 organizations. I don't think that they are per se crimes of
21 violence.
22 And if we look at the statute on which they rely,
23 which is really an incorporation of -- for a crime of
24 violence, an incorporation of the homicide statute for
25 actions against U.S. nationals outside of the United States,
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28
1 it is clearly intended to criminalize actions versus
2 civilians.
3 It is not intended to create a crime for taking
4 part in an armed military conflict in another part of the
5 world.
6 And there is simply no evidence-- I am taking the
7 allegations of the affidavit, taking the allegations of the
8 indictment on their face. You know, accepting them as true
9 for these purposes, saying the grand jury has found these
10 things.
11 But if we look at those allegations, there is no
12 evidence, there is no allegation of any actions against
13 civilians. No evidence really or allegations that Mr. Lindh
14 ever intended or attempted even to take any actions against
15 U.S. military forces.
16 It is simply not there even on the face of the
17 affidavit and the allegations of the indictment.
18 The only gun use, this is the statute that gets us
19 within the presumption, the only alleged gun use that is
20 alleged is as a foot soldier with forces along an established
21 battle line in the Takhar region of Afghanistan.
22 Which again, by the Government's own allegations,
23 troops that were in a defensive position against advances of
24 the Northern Alliance. That's all we have.
25 So, yeah, okay, the statute is now in the
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
29
1 indictment which triggers the presumption. We concede that,
2 Your Honor. But I think we have to look at whether that
3 presumption is rebuttable. We have to look at what in this
4 case triggers the presumption. And I don't think it adds up
5 to a finding of dangerousness.
6 And I think we do need to look carefully, and I
7 would just ask the Court to focus on what it is alleged. And
8 this is, you know, again looking at the affidavit, looking at
9 the indictment, what it is alleged that John Lindh actually
10 did. Not who he met, not who he may have associated with,
11 but what he actually did as alleged by the Government.
12 And I think those allegations don't support a
13 conclusion that he is the kind of dangerous person that the
14 Justice Department claims that he is.
15 And again, we talk about-- You know, it is
16 military training. Mr. Bellows says this morning, you know,
17 terrorist training.
18 The allegations of the affidavit and the indictment
19 in fact are that he declined any training other than military
20 training. That he refused to do anything other than to be a
21 foot soldier in this battle going on in the Takhar region of
22 Afghanistan.
23 If we look at the 302 that supports the agent's
24 affidavit, which we got for the first time this morning, you
25 know, the training is described as three weeks of weapon
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
30
1 familiarization, one week of topography, battlefield training
2 using camouflage, defensive positions, and explosives, which
3 means grenades and Molotov cocktails.
4 I mean, this is military training. And it goes on
5 to say, he refused any other kind of training in that camp.
6 And they keep throwing around this word "al Qaeda."
7 And then the 302 says he refused to take allegiance to al
8 Qaeda.
9 He had one intention, this is just based on their
10 allegations, I am not talking about the facts of the case, he
11 had one intention, and that was to engage in a military
12 conflict on behalf of one side in a battle that at the time
13 he went to do it had nothing to do with the United States.
14 THE COURT: Mr. Harris, it doesn't get better the
15 second or even the third time around.
16 MR. HARRIS: Okay. I appreciate that, Your Honor.
17 And let me just finally address-- Well, two things
18 because they do, they do put this in their papers again,
19 which is to try to juxtapose a description of the uprising at
20 the fort where Mr. Lindh was held as a prisoner. They
21 juxtapose this, I think in a highly misleading way, with
22 statements that he made, and this is in their brief today, in
23 a CNN tape. You know, comments about jihad and what that may
24 have meant.
25 I think that is highly misleading when in the very
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
31
1 same tape Mr. Lindh clearly states that he had nothing to do
2 with that uprising, nothing to do with the results of that
3 which they invoke, I would say gratuitously, in this context.
4 And indeed did nothing about take refuge in the basement
5 while this uprising was going on.
6 So, I think that does not support a finding of
7 dangerousness here.
8 So, the allegations, even if taken on their face,
9 don't support a conclusion of dangerousness.
10 And again, I think it is relevant what the basis of
11 those statements are.
12 Finally addressing the flight risk issue. We have
13 no evidence here that Mr. Lindh has done anything since he
14 has been in U.S. custody except cooperate fully with U.S.
15 authorities. We have statements we have given them, Your
16 Honor, to that effect from high officials in the government.
17 Contrary to what the Government says, Mr. Lindh has
18 very strong ties to his family and to this country. He had
19 every intention, in fact, to complete his studies and return
20 to his family in the United States.
21 As you know from Pretrial Services, he has no
22 resources of his own for travel of any kind.
23 I think the combination, the kind of conditions
24 that have been proposed and which you have in the Pretrial
25 Services report should alleviate any concerns that the Court
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32
1 might have that he might be a flight risk or, for that
2 matter, that he would be a danger to the community.
3 So, we would look forward to working with the Court
4 on fulfilling whatever conditions the Court deems are
5 appropriate. But we think given those conditions the
6 Government has not shown, that pretrial release is
7 appropriate in this case.
8 THE COURT: All right. Thank you, Mr. Harris.
9 Any rebuttal argument?
10 MR. BELLOWS: No, Your Honor.
11 THE COURT: All right. The matter is before the
12 Court on the Government's motion that the defendant be
13 detained for trial without bond.
14 Because of a probable cause finding represented by
15 Count 10 of the indictment, there is a presumption subject to
16 rebuttal by the defendant that no condition, excuse me, or
17 combination of conditions will reasonably assure the safety
18 of the community and the appearance of the defendant as
19 required.
20 Unlike most cases where the Court can and usually
21 does consider the issue of risk of flight and danger to the
22 community separately, this case is one, as Mr. Brosnahan
23 points out, of unusual circumstances.
24 And in the Court's view, these circumstances render
25 those two issues, risk of flight and safety to the community,
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
33
1 all but inseparable. And accordingly, I address them
2 together.
3 In determining whether or not the defendant has
4 rebutted the presumptions in favor of the Government, the
5 Court is required to consider the factors set forth in Title
6 18, Section 3142(g).
7 A factor, and perhaps in the Court's view the most
8 significant factor to be considered here, is the nature and
9 circumstances of the offenses charged and whether or not the
10 crimes alleged are crimes of violence.
11 There is no argument, and I suggest there can be no
12 argument, that the charge of conspiracy to murder U.S.
13 nationals is not a crime of violence.
14 The defendant also is charged with the crime of
15 contributing services to an organization that has perpetrated
16 violence upon the United States and its citizens and citizens
17 of other countries to an extent previously unknown in this
18 nation, and even now unfathomable.
19 A second factor, the weight of evidence against the
20 defendant. Here, for purposes of this hearing, the Court
21 considers the weight of the evidence only as one of probable
22 cause for the crimes alleged.
23 While defendant argues that the weight of the
24 evidence is slim and that the statements made by the
25 defendant ultimately will be determined inadmissible, the
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
34
1 detention hearing is not a substitute for a Rule 12 motion to
2 suppress, nor is it a substitute for a Rule 16 discovery
3 motion.
4 And I appreciate Mr. Brosnahan's recognition of
5 that this morning.
6 Nor does the detention hearing require the
7 Government to reveal the details of its case or the
8 identities of its witnesses.
9 And as I have previously stated, the conditions of
10 confinement are simply not relevant for the purpose of
11 assessing risk of flight or danger to the community.
12 And having stated it, and I apologize to Mr. Harris
13 because I limited him from repeating, but again for emphasis,
14 the Government's case here is one of probable cause and
15 nothing more.
16 I simply decline to predict the outcomes of motions
17 to suppress which are not properly before the Court, and I
18 don't wish to comment on matters not relevant to the hearing.
19 This brings me to the characteristics of the
20 defendant. The defendant has no social or economic
21 stability. His record of gainful employment is limited to a
22 three-week stint of warehouse work some two years ago. The
23 defendant has no assets or liabilities.
24 The defendant has lived outside of the United
25 States from May of 1998 to February of 1999 while in Yemen,
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
35
1 and from February of 2000 until brought into this district on
2 January 23 of this year.
3 The defendant had no actual physical contact with
4 his parents or family for almost two years, and no contact of
5 any kind from June of 2001 until his capture in Afghanistan.
6 These are not the family ties, in the Court's view,
7 that can rebut the presumptions in favor of the Government.
8 While the parents of the defendant laudably offer
9 financial support and a number of arrangements for which
10 another person -- or which for another person might
11 reasonably address the risk of flight, these arrangements in
12 sum would provide little more than early notice of the
13 defendant's flight.
14 And I find that the defendant has every incentive
15 to flee.
16 The indictment alleges that this defendant as part
17 of his al Qaeda training participated in training courses in
18 weapons, explosives and combat. While it may be argued or
19 stated today that the defendant is a loyal American, the
20 evidence before the Court belies that assertion.
21 And I find that the defendant has not rebutted the
22 presumptions in favor of the Government.
23 Based on a preponderance of the evidence, I find
24 that the defendant poses a risk of flight such that no
25 condition or combination of conditions will assure his
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
36
1 appearance.
2 And I conclude based on clear and convincing
3 evidence that if released, or if released and defendant
4 flees, which he is likely to do, he poses a danger to the
5 community.
6 And accordingly, I grant the Government's motion
7 that the defendant be detained for trial. And he will be
8 remanded shortly to the United States Marshal.
9 I presume the parties are aware that arraignment is
10 at 10 o'clock Monday, February 11?
11 MR. BROSNAHAN: Yes, Your Honor.
12 THE COURT: That will be in courtroom 900. And if
13 you don't already know, Judge Ellis is the trial judge for
14 this case.
15 MR. BROSNAHAN: Yes, we understand that. We have
16 talked to the Government, and we hope to talk to them some
17 more about a schedule. And we have had some early
18 discussions with them, and I think that is helpful.
19 We are seeking, I don't know if this is going to
20 work or not, to see if Judge Ellis could accommodate us this
21 week. But we don't know if that going to work or not at the
22 moment.
23 But thank you, we do know that.
24 THE COURT: All right. It is nice to have you, Mr.
25 Brosnahan.
Norman B. Linnell OCR-USDC/EDVA (703)549-4626
37
1 And the Government.
2 MR. BROSNAHAN: Thank you, Your Honor.
3 THE COURT: And the Court will remain in session
4 while the defendant is removed, and then we will recess.
5 MR. BROSNAHAN: Thank you, Your Honor.
6 THE COURT: Thank you, Mr. Brosnahan.
7 NOTE: The defendant is removed from the courtroom.
8 THE COURT: All right. I will ask the clerk to
9 recess court until tomorrow morning at 10.
10 ------------------------------------------------
HEARING CONCLUDED
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18
19 I certify that the foregoing is a true and
20 accurate transcription of my stenographic notes.
21
22
_________________________________
23 Norman B. Linnell, CP, CM, CE
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Norman B. Linnell OCR-USDC/EDVA (703)549-4626
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