by Katharine Q. Seelye, The New York Times
WASHINGTON - Lawyers for John Walker Lindh, the Californian accused of fighting for the Taliban, today sought the dismissal of 5 of the 10 counts against him.
In papers filed at the United States District Court for the Eastern District in Alexandria, Va., they said the court should dismiss one charge that Mr. Lindh engaged in conspiracy to commit murder and four charges that he provided services to the Taliban and Al Qaeda, which the United States said was responsible for the Sept. 11 terrorism attacks.
They said the court should dismiss the charge of conspiracy to commit murder because all foot soldiers are immune from prosecution of actions during combat. As for providing services, they said, any service from him was voluntary and noncommercial and the law under which he is being prosecuted barred only economic transactions.
Today’s filings are part of a broad effort by the defense to have the entire case dismissed. The defense is expected to file additional motions seeking dismissal of other charges later this week.
Three of the 10 charges against Mr. Lindh carry a maximum of life in prison, but of the charges that the defense sought today to dismiss, only one — conspiracy to murder United States nationals — has a life term. The others are two charges of conspiracy to provide material support and resources to a foreign terrorist organization. Mr. Lindh, 21, has pleaded not guilty to all charges.
The trial is set to begin on Aug. 26. Today’s motions are to be argued on June 17.
Mr. Lindh’s next appearance in court is scheduled for May 28, when the court is expected to determine whether and how his lawyers can interview prisoners being held at Guantánamo Bay, Cuba, who have spoken to the prosecution about Mr. Lindh.
In its papers today, the defense argued that the charge that Mr. Lindh conspired to commit murder violated “the well-established international principle of combat immunity,” which the United States has affirmed many times.
The indictment said that Mr. Lindh underwent military training a year ago in Pakistan, that he wanted to fight with the Taliban and that after the United States began bombing Afghanistan on Oct. 6, he remained with his unit.
But, the defense said, “there are no allegations that Mr. Lindh ever engaged in any acts of war whatsoever, or that he ever intended, attempted to, or actually did harm any U.S. soldier.”
Citing a United States Supreme Court ruling, the defense argued that “it is not a crime to join the armed forces of a foreign nation.” It said that the Neutrality Act of 1794 prohibited someone only from joining a foreign army to fight a country that is at peace with the United States, and it cited cases in which the United States claimed immunity for its own soldiers captured in combat.
On the four charges related to contributing services to the Taliban, the defense argued that the government had no authority to make such charges.
The defense said that the International Economic Emergency Powers Act allowed a president to freeze the assets of another country and bar certain financial transactions but that it did not give the president the power to regulate “services.”
“There is no mention of any power to regulate `services’ in the statute, much less of the power to regulate anything resembling voluntary personal association of the kind alleged against Mr. Lindh,” the lawyers wrote.
They added that the indictment did not specify what “services” Mr. Lindh was alleged to have provided, nor did it describe any actions “that might be characterized as financial, professional or technical.”