In rejecting the claim that Walker Lindh was a lawful combatant because of his Constitutional right to free association, Ellis said that protection of association is not a right to conspire with terrorists and the matter should be resolved by a jury later this fall.
"The First Amendment guarantee of freedom of association is not a pass to provide terrorists with resources and services," Ellis said.
On the other argument, because the juror pool would be taken from the Eastern District of Virginia, an area that remains in "collective mourning" for those killed in the hijacking suicide attack on the Pentagon by al Qaida terrorists on Sept. 11, defense attorney John Brosnahan told U.S. District Judge T.S. Ellis III earlier on Monday.
An earlier motion by Walker Lindh's team said "a fair trial is not possible," but suggested that in the absence of a complete dismissal, the venue should be changed to a region less affected by the terror attacks on Washington and New York, such as Walker Lindh's hometown in Northern California.
U.S. Attorney Randy Bellows successfully countered that the jury selection process is effective at removing biased jurors from the pool and that Walker Lindh will receive jurors "as fair minded as any in the country."
Walker Lindh had traveled last year, first to an Islamic school in Pakistan and then to a military training camp in Afghanistan, where he eventually became a front line solider for the Taliban in their fight against the U.S.-backed Northern Alliance. After the U.S.-backed invasion seized the northern portion of the country in pursuit of al Qaida militants, Walker Lindh was taken prisoner, first by Afghan troops, and then transferred to the U.S. military.
If found to be a lawful combatant, Walker Lindh cannot be charged with any crime in accordance with international law, defense attorney George Harris argued.
"You can't charge a solider for being a solider," Harris told Ellis.
Assistant U.S. Attorney John Davis said that the current court lacked jurisdiction to consider Walker Lindh's current "non-lawful combatant" status because it lies within the president's discretion to pass such judgments.
"The lawful combatant determination by the Executive Branch has supreme authority," Davis said. "The court should not be in the business of deciding such matters."
President Bush last year determined that soldiers for the Taliban and al Qaida were unlawful and thus could be detained or tried. Walker Lindh was not singled out with this status, prosecutors said.
The distinction in crucial for the administration because Walker Lindh has unique status as an American citizen being charged for participating in a foreign war and because most of the nearly 400 suspected al Qaida and Taliban fighters currently being held and interrogated at a naval base in Cuba have received such classifications.
The defense also argued that Attorney General John Ashcroft had singled out Walker Lindh for prosecution for being an American Muslim. Ashcroft held two news conferences to announce charges against Walker Lindh, a move that defense lawyers have called an indication that Ashcroft is engaged in a personal campaign to convict Walker Lindh.