Did CNN Rob John Walker Lindh of a Fair Trial?

by Cynthia Cotts, Village Voice

The Lindh interview may turn out to be a case study in how the government can put the squeeze on the media

Recall that Lindh became famous overnight. Before December 2, when CNN reported that he had been taken into custody, he was a faceless minion behind enemy lines. Just two months later, Lindh has replaced bin Laden as the face of evil, and CNN's interview has become a key piece of evidence in the criminal case that kicked off in Virginia last week. He has not yet been indicted.

The Lindh interview may turn out to be a case study in how the government can put the squeeze on the media. Here are some of the facts known so far: Pelton, the author of several travel books, had no experience as a journalist until last fall, when he got an invitation to spend time with a warlord who was fighting with a team of Green Berets in Afghanistan. He called CNN, which immediately sent him a cameraman, after which he filed several stories. One of them was his Lindh interview, which he conducted in a hospital near Mazar-i-Sharif and which first aired on December 2 -- around the same time Lindh was taken into military custody.

When Pelton sent the two-minute segment by satellite, "It was a big deal for CNN," he told the Voice. "CNN's going through a lot of troubles financially, and they're driven as much by viewers as by news judgment. So when this tape came over the transom, they were saying, 'We've got a scoop!' "

Pelton returned from Afghanistan on December 17. About a week before that, he said, he heard that the FBI was talking to CNN, and a top CNN exec told the cameraman, "Don't lose that tape!" However, it is standard for news organizations to resist turning over raw reporting material for use in a court of law. To avoid the subpoena, Pelton says, CNN worked out a deal whereby it broadcast an edited tape and posted an all-but-complete version on the Internet.

By placing the tape in the public domain, legal experts say, network execs pulled off a neat trick. They gave prosecutors the evidence they wanted -- and avoided being served the subpoena. That way CNN could duck the bad publicity from either resisting or complying with the subpoena.

A CNN spokesperson issued the following statement: "In certain investigations, federal criminal rules often do not allow parties to discuss whether they've been served with a subpoena. CNN understands that this is that type of investigation, so we cannot talk about it one way or another." Pressed to explain a broadcast that became so prejudicial, he said, "We aired the interview because it was newsworthy and it was exclusive."

Marc Garber, a former prosecutor turned defense attorney, said that it's natural for the Justice Department to want to "keep a tight lid on the evidence" and for CNN to want to "get out in front of the story."

"I don't think CNN or the government would want to be seen as getting in bed in something as sensitive as this," said Garber. "This is the system that's being attacked by terrorists, so if you're the government, you want this to be the fairest trial. If you saddle up to CNN or put the screws to them, you're going to cause yourself more harm in the long run."

Again: Lindh has not yet been indicted. So far, according to Pelton, the only evidence being cited by the government are Lindh's statements to CNN and to FBI agents, and Pelton's statements to the media. Last week, Lindh's lawyer James Brosnahan questioned the admissibility of Lindh's FBI statements because, he said, his client was denied the right to counsel for 54 days after he was taken into custody. (The government says Lindh signed a waiver of his right to counsel.)

It's unclear what evidence will turn up at trial. Some legal insiders seem to feel that the CNN interview will be admitted, based on the government's argument that it was a voluntary statement given to a third party. But they say Brosnahan will try to undermine the CNN interview by arguing that Lindh did not fully consent to the interview, that he was being given morphine at the time, or that CNN was acting as an arm of the U.S. government. Brosnahan did not return calls for comment.

According to defense attorney Mark Geragos, the FBI's failed attempt to subpoena the tape suggests that CNN was "not in cahoots with the government." The bigger question, he said, is "How did CNN get access to somebody who was supposedly in military custody?" To get the answer to that enigma, Geragos predicted, Brosnahan will want to depose Pelton, the CNN cameraman and producers, and whoever was in command of the Special Forces at Mazar-i-Sharif. Finally, because prosecutors need witnesses to support Lindh's statements, Geragos said they may end up using some of the prisoners currently being held in Guant‡namo Bay to testify against him.

For his part, Pelton insisted, "I have never had any connection with any U.S. government agency." Rather than trying to incriminate Lindh, he said, he only wanted to make sure the American received medical care and that he wouldn't be killed. He suggests the tape has been misused by prosecutors whose case against Lindh relies heavily on TV interviews, instead of facts provided by firsthand sources. Instead of using the CNN interview to turn Lindh into a convenient "symbol of hatred," Pelton said, the Bush administration should be focusing on Saudi and Egyptian terrorist suspects currently at large in America.

But Pelton doesn't just blame the government. He said the pundits (including certain guests on Larry King Live and myself) have twisted the facts of the case, using it for target practice, while Lindh has done nothing but tell the truth so far.

Pelton said he shares Lindh's devotion to the truth."I'm not a journalist," he said, "and I have no interest in sensationalized stories. What I do is meet with combatants on each side, try to understand why they're doing what they're doing, and let the readers make up their own minds." He said that initially, he was glad CNN "was running a raw, gritty tape and trying to get some insight" into Lindh, because "as long as we demonize the phenomenon of young jihadis, they're going to be angry and do violent, irrational things."

Of course, these questions may soon be moot. If prosecutors can get other prisoners to testify, they may never formally introduce the CNN interview into evidence, in which case the defense will never have an opportunity to investigate its provenance. If that happens, the government and CNN will once again come out ahead -- and Lindh will once again be the loser.