Legal Status Unclear for U.S. Talib

Three months ago, as Americans plunged into the war on terrorism, this was not the face they expected to see when the smoke cleared--a gaunt, 20-year-old California kid with the defiant manners of a teenager and two frightened parents struggling in his wake.

John Walker Lindh, who turned up unexpectedly among the Taliban fighters surviving a bloody prison revolt near Mazar-i-Sharif, immediately became the subject of vigorous debate across the country: Legally and otherwise, who is he? What should be done with him?

Is he a prisoner of war, protected by the Geneva Convention? Is he a traitor, fit to be tried and even executed? A terrorist who should go before a military tribunal? Or just a latter-day Patty Hearst?

And beyond statutes and legal precedents, Walker’s case seemed to raise larger questions as well: How does the country feel about a young man who ended up in a terrible place but got there by a path that is all too familiar to millions of American parents?

The progress of Walker, which is the surname he has offered to media in Afghanistan, from a teenage obsession with Islam to a battered Afghan fortress may be unique in its details. Yet for many, there was something hauntingly familiar about a middle-class youth engaged in a personal pilgrimage that carried him onto dangerous ground, deaf to all entreaties by family or friends.

Even President Bush, who has been relentless in denouncing the Taliban and its Al Qaeda allies, reacted in personal, not legal terms when asked about the Walker case.

“We’re just trying to learn the facts about this poor fellow,” he told ABC News. “Obviously he has, uh, been misled, it appears to me. . . .

“He thought he was going to fight for a great cause and in fact he was going to support a government that was one of the most repressive governments in the history of mankind. . . . Surely he was raised better.”

U.S. officials, still trying to pull together the facts about Walker, walked on tiptoes in describing his status. They said only that he was being held in Afghanistan and would be accorded all appropriate legal rights.

Defense Secretary Donald H. Rumsfeld said it remained unclear how the Pentagon would deal with Walker. As Bush’s decree authorizing military tribunals now stands, he said, it appears that no U.S. citizen, even one fighting side by side with the Taliban, can be tried in such a proceeding.

Although he declined to call Walker a traitor, the secretary pointedly left open the possibility that he would be prosecuted.

“We found a person who says he’s an American with an AK47, in a prison with a bunch of Al Qaeda and Taliban fighters,” Rumsfeld said. “And you can be certain he will have all the rights he is due. We are looking at the various options at the present time.”

James J. Brosnahan, a prominent San Francisco trial lawyer, said he would represent Walker. In a brief statement issued late Tuesday, Brosnahan said he and the young man’s parents had asked the government for “safe passage” to meet with him soon and that no charges be filed “until we have had an opportunity to speak with the United States government.”

Rumsfeld said Pentagon officials had not spoken to the attorney. Privately, some Pentagon officials speculated that Walker could be tried as an accessory to the murder of a CIA officer who was killed during the prison uprising in which several U.S. Special Forces troops were injured and hundreds of Taliban fighters were killed.

Rumsfeld said Walker was being held by U.S. officials, but he shunned the term “custody.”

“My understanding is he is injured to some extent. He is being provided medical attention,” Rumsfeld said.

In matters of policy as well as law, experts disagreed on what could or should be done. Some took a hard line, while others saw a murkier situation and a few suggested Walker’s was a case the government might be wise to sidestep altogether.

Dwight H. Sullivan, a former Marine Corps lawyer who is now managing attorney for the American Civil Liberties Union in Baltimore, said: “It’s not clear to me that he has violated any criminal law. It is certainly not treason, which has a very precise definition.

“If he committed a war crime of some type, then he certainly could be tried in federal court. But the question is, what are they going to charge him with?”

Veteran Washington defense attorney Plato Cacheris said: “I don’t know what they might charge him with. Nothing jumps out at me.”

Tom Palmer of the libertarian Cato Institute in Washington, saw the issues differently.

“People say this young man is just a boy of 20,” Palmer said. “Well, my father was 17 when he went off to fight the Nazis in World War II. I think if you go off to fight with a regime that espouses terrorism, like this young man did, you ought to face the full consequences. Otherwise we’re sending the wrong message to our youth.”

Federal law forbids anyone owing allegiance to the United States, which includes all who hold U.S. citizenship, to levy war against the country or to give aid and comfort to its enemies, he noted.

If the government takes a hard line, experts said the charges could be treason, punishable by death.

While some argue that treason applies only in time of war, the applicable federal statute contains no such restriction.

Victoria Toensing, a terrorism specialist, saw charges of treason as a distinct possibility.

“He gave aid and comfort to the enemy at a time of war, and we clearly have been at war since Sept. 11,” Toensing said. And in view of Walker’s televised expressions of support for the Sept. 11 attacks, she said: “I would suggest making a deal instead of going to court.”

Times staff writers John Hendren in Washington and Henry Weinstein in Los Angeles contributed to this report.