The Rules

John Ashcroft’s John Walker Lindh comments were inappropriate

By Dave Kopel

National Review Online, February 19, 2002 10:20 a.m. More by Kopel on terrorism and civil liberties.

Earlier this month, Attorney General Ashcroft announced the indictment of American Taliban John Walker Lindh, a/k/a "Suleyman al-Faris," a/k/a "Abdul Hamid." After the press conference, Lindh's lawyer denounced Ashcroft's comments, and accused Ashcroft of violating Department of Justice guidelines and imperiling Lindh's right to a fair trial. Although it can be argued that Ashcroft violated no legal rules, his comments were inappropriate.

The first part of Ashcroft's speech consisted of announcing the indictment, and describing the allegations therein. It is well established that prosecutors, like all lawyers involved in a case, may summarize public legal documents such as indictments. The controversial part of the speech was the second half:

It is extraordinary for the United States to have to charge one of its own citizens with aiding and conspiring with international terrorist groups whose agenda is to kill Americans. . . .

The United States is a country that cherishes religious tolerance, political democracy, and equality between men and women. By his own account, John Walker Lindh allied himself with terrorists who reject these values.

. . .By his own account, John Walker Lindh fought side by side with tyrants who recognized no other law than the law of brute force.

As today's indictment sets out, John Walker Lindh chose to train with al Qaeda, chose to fight with the Taliban, chose to be led by Osama bin Laden. The reasons for his choices may never be fully known to us, but the fact of these choices is clear. Americans who love their country do not dedicate themselves to killing Americans.

. . .I'm confident that they [the prosecutors in Lindh's case] will, with great skill and dedication, secure justice for the nation — secure justice for the nation that John Walker Lindh betrayed, and they will uphold the values that he dedicated himself to destroy.

Because the Lindh case is being brought in federal district court in the Eastern District of Virginia, all attorneys in the case are bound by Virginia's rules of legal ethics. This includes any lawyer with the Department of Justice, and applies to conduct, such as Ashcroft's D.C. press conference, that takes place outside of Virginia.

In 1999, Congress enacted 28 U.S.C. § 530B (sponsored by Rep. Joseph McDade) to affirms that federal attorneys are bound by state rules of legal ethics. Attempts were made during the 2001 passage of the so-called " USA PATRIOT Act" to repeal this statute, but the efforts failed.

Legal ethics rules have long forbidden prosecutors and defense attorneys to try their cases in public. Rule 3.6 of Virginia's Rules of Professional Conduct states:

(a) A lawyer participating in or associated with the investigation or the prosecution or the defense of a criminal matter that may be tried by a jury shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication that the lawyer knows, or should know, will have a substantial likelihood of interfering with the fairness of the trial by a jury.

The Virginia rules are derived from the American Bar Association's Model Rules of Professional Conduct. Other states have added details to the general rules adopted in Virginia. While these rules of other states are not, of course, legally binding in Virginia, a plausible argument can be made that the kinds of things specifically forbidden in other states should be carefully considered by the Virginia court as creating the kinds of problems which Virginia's general language seeks to prevent. For example, one elaboration of Rule 3.6 forbids comments on: "the character . . .of a party . . .in a criminal investigation"

Ashcroft said that Lindh did not love his country and had "betrayed" his country — plainly negative statements about Lindh's character. That a comment about a defendant's character is accurate is irrelevant to the ethical rule.

Also prohibited is:

in a criminal case or proceeding that could result in incarceration, ... the existence or contents of any confession, admission, or statement given by a defendant.

Lindh's December 2 interview with CNN acknowledges that Lindh allied with the Taliban, received training at a bin Laden camp, and joined Taliban fighters before the war began. But absent Lindh's confession, we do not have direct evidence that Lindh decided to "dedicate" himself "to killing Americans." Thus, Ashcroft appears to have discussed the contents of Lindh's confession.

Notwithstanding the above rules against certain kinds of publicity, the Model Rules allow prosecutors and defense attorneys to address "the information contained in a public record." Thus, Ashcroft's statement about the "extraordinary" nature of the indictment was legitimate, since indictments of Americans for terrorism are, indisputably, extraordinary.

But Lindh's confession is not in the public record, and thus should not have been discussed (except in the context of describing the indictment, which relied in part on Lindh's confession).

Further, Ashcroft's claim that Lindh "fought side by side with tyrants who recognized no other law than the law of brute force" is not really based in the public record either. The Taliban and Al Qaeda did recognize a law "other law than the law of brute force" — namely their evil interpretation of Koranic law.

The Department of Justice has additional self-imposed rules, codified at 28 Code of Federal Regulations section 50.2. In particular:

Disclosures should include only incontrovertible, factual matters, and should not include subjective observations....
personnel of the Department should refrain from making available the following: (i) Observations about a defendant's character.

Ashcroft's comments were filled with observations about Lindh's character. Here, though, Ashcroft has an easy escape hatch:

If a representative of the Department believes that in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so.

So Ashcroft could give himself permission to deviate from the DOJ's guidelines. But the very fact that Ashcroft did deviate from the guidelines, and, at the least, entered into controversial territory regarding Virginia Rule 3.6 gives Lindh's attorney a plausible basis for arguing that Ashcroft's comments deprived Lindh of a the possibility of a fair trial.

This doesn't mean that a judge will or should rule that Lindh couldn't get a fair trial. But it does mean Lindh's attorney now has a basis for a new argument with a non-trivial chance of success. If Ashcroft had simply concluded the press conference after detailing the indictment, no risk to the case would have been created.

John Walker Lindh is a despicable person, and Attorney General Ashcroft was accurate in labeling Lindh an enemy of America and American values. But because Lindh is getting more than he morally deserves — namely a trial strictly bound by American rules of legal procedure — the attorney general ought to avoid saying anything which could give Lindh even a slender legal basis for arguing that his case should be dismissed or (if Lindh is convicted) that his conviction be overturned. The gratuitous comments by the attorney general did not enhance public safety, or provide any other special public benefit — and certainly no benefit worth endangering the Lindh prosecution even a little.

As the Lindh case proceeds, and as more terrorists are captured and tried, it would be better for the attorney general simply to announce the facts of the indictments, and to avoid extra comments which might unintentionally imperil successful prosecutions.

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