Lawyers argue Lindh had right to associate with Taliban

Associated Press WriterALEXANDRIA, Va. (AP) -- John Walker Lindh's lawyers told a judge Monday he cannot get a fair trial at a courthouse just nine miles from the site of the Pentagon attack and argued the American had a constitutional right to associate with the Taliban.

Defense lawyer George Harris suggested the government was building a case of "guilt by association rather than individual culpability," failing to recognize Lindh joined the Taliban to help fight rival Afghan forces and not to help the al-Qaida terror network attack America.

"You can't charge a soldier with murder for simply being a soldier," Harris argued.

The government countered that its case was based on criminal acts by Lindh. "The case is not about association, but about acts of violence with groups bent on violence," Assistant U.S. Attorney John Davis said.

Both sides made their arguments before U.S. District Judge T.S. Ellis, who is weighing Lindh's request to move his trial this fall outside the Washington suburb of Alexandria, Va.

Lindh is charged with conspiring to murder U.S. nationals, providing support to al-Qaida and the Taliban and using firearms during crimes of violence.

The issues raised were unique because the government has leveled the charges against a U.S. citizen who was captured abroad as an enemy soldier.

Defense attorney James Brosnahan said the government intentionally chose to prosecute Lindh in a district that "includes the Pentagon, nine miles away, where more people were killed than in Oklahoma City."

One hundred eighty-nine people were killed when suicide hijackers crashed a jetliner into the Pentagon on Sept. 11.

"That is not the environment where John Lindh can get a fair trial," Brosnahan said. With jury selection currently set for late August, the trial would be under way on the one-year anniversary of the attacks.

Assistant U.S. Attorney Randy Bellows said jurors in northern Virginia "will be as fair-minded as any jurors in the country."

While the defense had asked that at the very least, the trial be moved to the San Francisco area, where Lindh grew up and his family lives, Bellows noted the events of Sept. 11 affected the entire country while the Oklahoma City bombing case was moved to Denver because of the unique impact the bombing had on Oklahoma City.

The defense also contended that Lindh had combat immunity as a soldier and had the right to associate with the Taliban under the First Amendment.

And, he added, the government should not be able to charge Lindh merely because of his association but must rather establish his individual criminal intent.

Lindh's team has argued that he joined the Taliban to fight the northern alliance in Afghanistan and never intended to be in combat against American soldiers. They also have said Lindh never was in combat against the United States.

Davis, one of the federal prosecutors, countered that the "defense seeks to portray the defendant as an honorable soldier on a par with our own servicemen and women."

In fact, he said, President Bush has declared the Taliban to be an unlawful combat force, and its soldiers are not entitled to the normal protections given enemy combatants under international treaties.

Brosnahan said the government in its criminal complaint referred to Lindh's Muslim religion and added, "Even the president made it clear that you should not discriminate against Muslims."

Davis also pointed out that Lindh is charged with affiliating with al-Qaida, and added that nobody could argue that al-Qaida operatives were entitled to international protections.

Lindh's lawyers have vigorously denied that he ever was part of al-Qaida, although the indictment said he personally met Osama bin Laden while at a training camp in Afghanistan.

Brosnahan blamed top U.S. officials for making public statements that convinced members of the public that Lindh is guilty. He said the attitude of many Americans, according to surveys, is "let him be killed, they say, some without trial."

Brosnahan said Lindh is a victim of selective prosecution, since he is charged with aiding the Taliban under a law designed to charge corporations with making illegal financial transactions.

Davis, the prosecutor, said the statutes are broad and permit charging someone with a crime who contributed personal services to an illegal organization.