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Kendall Coffey: Walker Lindh attorneys face uphill legal battles

Kendall Coffey

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(CNN) -- The attorneys for John Walker Lindh, the so-called Taliban American, will appear in court Monday to argue to have the case thrown out of court. Former U.S. Attorney Kendall Coffey spoke with CNN's Carol Costello about various legal points that will be raised in Monday's hearing. (More about the court appearance.)

CAROL COSTELLO: John Walker Lindh's attorneys want all of the charges dismissed against him, because they are claiming combat immunity. What is that?

KENDALL COFFEY: Well, combat immunity, they say, is a doctrine of international law, which means if someone is fighting as a soldier and doesn't commit a specific war crime, they can't be prosecuted. They have got other issues as well, First Amendment, freedom of association. But bottom line, those issues aren't going far at all.

The real issues were reflected in some filings Friday (June 14) when they addressed in great detail. Their argument is to ask the judge to throw out what amounts to the confession of John Walker Lindh. That's going to be heard a number of weeks from now, because that confession is going to be absolutely pivotal in whether he has got a shot at successfully defending these charges.

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COSTELLO: Well, let's talk about that confession. The defense claims that their client was not read his Miranda Rights, and that's why the confession should be thrown out. Do they have a leg to stand on in this instance?

COFFEY: It's uphill. It's uphill for a lot of reasons in the sense that he did sign a waiver. He is obviously a very bright guy, and confessions are routinely admitted against people, some of whom are near mental retardation, some of whom are not even literate, and so in a sense, it's going to be tough.

But what the defense is really emphasizing here is the physical conditions of confinement, that he had untreated wounds in his leg, near freezing conditions, hungry, dehydrated. And they are saying in a sense that he was virtually being tortured in order to get him to waive his rights.

COSTELLO: Well, I know ...

COFFEY: It's still uphill, but it's going to be one of the more important legal fights in all of the various terrorism issues that are going to court.

COSTELLO: I know the prosecution will argue when John Walker Lindh made that confession, they were just gathering intelligence information, not necessarily information to be used in a court of law.

COFFEY: There is an important distinction just as you described it. There is a right, of course, in order for national security purposes to have military inquiries, interrogations focusing on military information. That's not supposed to be used in a way to develop a criminal case against the detainee in the event there is ultimately a prosecution.

What the defense is arguing is the military investigation and interrogation essentially got merged with the criminal, and in the military phase, there were no Miranda Rights. Another interesting dynamic is the defense's promise to be filing another motion to suppress some of the statements John Walker Lindh made to CNN. And they seem to be suggesting that -- you may recall the initial interview that he gave with CNN...

COSTELLO: I do.

COFFEY: ... very important information in there. So CNN itself could be, in at least a small way, part of the various defense motions that are coming up between now and July.