Judge- Reporter must take stand in Lindh case

Saturday, July 13, 2002

ALEXANDRIA, Va. -- A judge on Friday rejected a free-lance reporter's effort to avoid testifying about his videotaped interview with American Taliban fighter John Walker Lindh in Afghanistan last year.

U.S. District Judge T.S. Ellis III ruled that journalists don't enjoy a First Amendment privilege to avoid testifying except in limited circumstances involving protection of confidential sources or harassment.

His ruling means that for the time being free-lance reporter Robert Pelton is required to testify next week at Lindh's pretrial hearing.

While refusing to grant Pelton's request to reverse his subpoena, Ellis said that before Pelton is called he will re-evaluate whether the reporter's testimony is still needed next week after other witnesses appear.

Lindh's attorneys subpoenaed Pelton, arguing he was essentially acting as an agent of the U.S. government when he interviewed Lindh at a U.S. military hospital after the American Taliban was captured.

The attorneys argue Lindh should have been read his Miranda rights.

Pelton rejected the claims he was acting as an agent of the government, and his attorneys argued Pelton's safety and his ability to gather news as a journalist would be harmed if he were forced to testify.

Several news organizations joined Pelton in his effort to overturn the subpoena.

But Ellis rejected Pelton's claim he would be harmed by being forced to testify.

"It isn't the subpoena that puts him in danger," Ellis said. "It is the argument that the defendant makes and he has a right to make that argument."

Pelton, a free-lancer working for CNN, interviewed Lindh in December at a prison hospital in Sheberghan, Afghanistan, shortly after Lindh was turned over to U.S. custody.

In the interview, which the government plans to present at Lindh's trial, Lindh discusses how and why he joined the Taliban, saying his "heart became attached to the movement. I wanted to help them one way or another."

Suppressing statements

Lindh's attorneys are also seeking to suppress statements Lindh made to a variety of U.S. investigators following his capture last year. A hearing on the issue is scheduled to begin Monday.

The legal dispute could reverberate well beyond Lindh's case to other prisoners captured in the war on terrorism.

Lindh represents a new breed of defendant -- someone originally picked up as an enemy combatant in a war zone and later transferred to the civilian court system. Ellis must determine whether such prisoners should be immediately advised of their right to remain silent and have an attorney present during interrogation.

Lindh's attorneys say yes. Prosecutors respond that the rule on questioning "has no place at the battlefield."

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