From: Radack, Jesselyn A

Sent: 12/07/01 1:06 PM

To: John De Pue

John,

The FBI wants to interview American Taliban member John Walker some time next week. The interview would occur in Afghanistan. Walker's father retained counsel for him. The FBI wants to question Walker about taking up arms against the U.S.

I consulted with a Senior Legal Advisor here at PRAO and we don't think you can have the FBI agent question Walker. It would be a pre-indictment, custodial overt interview, which is not authorized by law.

However, the FBI agent can say something to Walker to the effect of: "We understand that your father has retained counsel for you. Do you want this lawyer to represent you?" Given that Walker's parents think he was brainwashed, maybe he doesn't want a lawyer of their choosing. This option would be more risky, but I wanted to make you aware of it.

Another possibility might be to do an undercover interview. However, the Circuits are not in agreement about whether such communications are authorized by law. If you want to explore this idea, which you indicated was not very likely, we would need additional factual information, such as where you think this case would eventually be brought, whether there is currently a grand jury investigation and, if so, where it is taking place, etc. If there is a grand jury, you could always ask the judge presiding over it to authorize the contact.

Thanks,
Jess

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From: John De Pue

Sent: 12/10/01 08:31 AM

To: Jesselyn Radack

Thanks much. I have passed you [sic] assessment along and will keep you posted on this. The venue of indictment will depend on whether we wish to indict prior to Walker's return. Under the extratereritorial [sic] venue statute, 18 U.S.C. 323E, if we indict prior to return, it would likely be W's last known place of residence in Califorina [sic] the Ninth (ugh!) Circuit. If we decided to delay indictment until his return to the US it would be wherever the plane first lands.

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From: Radack, Jesselyn A

Sent: 12/10/01 09:55 AM
To: John De Pue

Just out of curiosity, why not make the venue of indictment the Eastern District of Virginia or the Southern District of New York? It seems the Fourth Circuit and the Second Circuit would be more favorable than the Ninth.

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From: John De Pue

Sent: 12/10/01 10:33 AM

To: Jesselyn Radack

We could do that if we waited to indict until he arrived there.

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From: Radack, Jesselyn A

Sent: 12/10/01 11:01 AM

To: John De Pue

I guess because he committed the crime of treason while he was overseas, you can't glom on to the conspiracy venue. It seems that if you indicted him for the conspiracy, that would be a different story.

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From: John De Pue

Sent: 12/10/01 11:15 AM

To: Jesselyn Radack

That's right. At present we have no knowledge that he did anything otherl [sic] than join the Talban [sic]. If that's treason, the federal extraterrorial [sic] offense venue statute applies. See 18 U.S.C. 3238.

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From: Radack, Jesselyn A

Sent: 12/10/01 11:29 AM

To: De Pue, John
You just advised that the Deputy Legal Advisor of the FBI stated that an agent went and interviewed Walker over the weekend, not knowing that Walker was a represented person. Please keep me in the loop as you learn more details. The interview may have to be sealed or only used for national security purposes; however, I don't have enough information yet to make that recommendation.

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From: John De Pue

Sent: 12/10/2001 01:54 pm-0500 (Monday)

To: Jesselyn Radack

Ugh. We are trying to figure out what actually transpired and what, if anything, Walker said. It may well be that the questioning was for intelligence purposes and that he was questioned as any other prisoner of war would be.

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From: John De Pue

Sent: 12/10/2001 02:11 pm-0500 (Monday)

To: Jesselyn Radack

If what you are telling us is true--and I am sure that it is--the FBI needs to b [sic] alerted at once.

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From: Radack, Jesselyn A

Sent: Monday December 10, 2001 2:18 PM

To: De Pue, John

The part about the interview possibly needing to be sealed? It's premature to conclude that yet. I need more factual information.

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From: Radack, Jesselyn A

Sent: 12/10/01 2:19 PM

To: De Pue, John

I wouldn't alert the FBI yet.

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From: John De Pue
Sent: 12/10/2001 02:26 pm - 0500 (Monday)

To: Jesselyn Radack

OK. However, I am somewhat leery about continuing to question w/out some understanding concernng [sic] such ethical constraints and whether Miranda warnings are being given.

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From: John De Pue

Sent: 12/20/2001 10:40 AM

To: Jesselyn Radack

I have seen a copy of the classified FBI 302 that summarizes Walker's statement to the FBI LEGAT who questioned him. It shows that the questioning was prefaced by Miarnda [sic] warnings and a waiver of rights by Walker. The residual issue here is whether any arguendo coerced confession could still have tainted that statement. I believe that we have a strong argument that question [sic] by the military of a POW need not be preceded by Miranda warnings. Such procedures are governed by international law.

I am also unaware of the extent to which DOJ attorneys may have been involved in the questioning. I am, however, quite confident that any arguendo McDade violation would not result in the suppression of the statement. See, e.g., United States v. Hasting, 461 U.S. 399 (1983).