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Thursday, Nov 26, 2009
After months of bold posturing and fierce infighting, both sides in the case of American Taliban John Walker Lindh decided to cut their risks.
Jul 16, 2002 | After more than seven months of legal maneuvering, John Walker Lindh, the young man from suburban Marin County, Calif., who decided to join the Taliban last August, has been convicted for the crime of failing to keep up with the Federal Register. Had he read that journal of U.S. legal notices as he was huddled in a trench facing Northern Alliance forces, he would have learned that, following the al-Qaida attack on the World Trade Center, he was suddenly in violation of law against "supplying services to" an enemy of the United States.
For that crime, which was established by a decision of the U.S Treasury Department, and for the additional crime of carrying a hand grenade while he was a Taliban soldier, Lindh will be sentenced to up to 20 years in federal prison after striking a plea agreement with the government Monday.
Lindh had been facing life in prison for his involvement with the ousted Taliban regime in Afghanistan. But the plea agreement appeared to be a tacit acknowledgement by the federal government that its case was at best uncertain against the 21-year-old Islamic convert. Dropped were all charges of terrorism, consorting with al-Qaida, and attempting to kill Americans. Nor did the agreement mention the government's earlier claim that Walker had been guilty of participation in a plot to murder CIA agent Johnny Spann, who died in an uprising of captured Taliban and al-Qaida fighters shortly after he had been interrogating Walker at the Mazar-i-Sharif prison.
"This was not a victory for either side," says David Cole, a lawyer with the Center for Constitutional Rights who had filed a brief with the court regarding some of the charges facing Walker. "The government had to give up its main charges in return for guilty pleas on what are really the most technical of charges." At the same time, Cole notes, Walker had to accept a stiff sentence for those two counts to which he pleaded guilty.
The plea bargain came as a surprise not just to the public, but apparently to most of those in the federal courtroom at Arlington, Va., including U.S. District Court Judge T.S. Ellis, who was preparing to hear arguments concerning the issue of whether the government could use statements elicited from Walker while he was first in captivity in Afghanistan. The agreement reportedly was negotiated in secret over the weekend among attorneys for the two sides, after President Bush on Saturday gave federal prosecutors the go-ahead to cut a deal.
The agreement seemed to represent a decision from both sides to minimize the risks they faced by going through with a trial. With the compromise approved, both sides were quick to declare victory.
"This is an important victory for the people of America in the battle against terrorism," said U.S. Attorney and lead prosecutor Paul J. McNulty.
Attorney General John Ashcroft, who reportedly had considered charging Lindh with treason, a capital offense, also hailed the verdict.
"He will now spend the next 20 years in prison -- nearly as long as he has been alive," Ashcroft said.
Lindh attorney Tony West agreed that 20 years was "a stiff sentence," but he said things could have been much worse for his client. "We were concerned about the venue and the pre-trial publicity," he said. The Eastern District of Virginia is widely known as one of the most conservative court districts in the nation -- one reason the U.S. Justice Department goes out of its way to try major criminal cases there, and why prosecutors chose to fly Lindh into Dulles Airport directly from Afghanistan. West notes that the jury for Lindh's trial would have been selected from a region where many Pentagon families live.
"We could have won our case and gotten not guilty verdicts on the other eight counts," he says, "and we still could have ended up losing on these two and ended up with a 40-year sentence instead of 20. We agreed John was a soldier for the Taliban and he was armed."
The question, then, becomes whether or not Lindh intended to fight against America. At the time Walker joined up and went to the front in August 2001, the Taliban were fighting against the Northern Alliance, long allied with Russia and the former Soviet Union.
West said federal prosecutors were willing to cut a deal with Lindh "because they were unsure whether his statements made in captivity would be allowed in court, and they were concerned about the testimony that would come out about the conditions under which he was held in Afghanistan."
Irwin Schwartz, president of the National Association of Criminal Defense Attorneys, concurred that both sides were seeking to maximize gain and minimize the risk of loss in striking the deal. "Plea bargains occur at the point when both parties think they have something to gain," he said. "The defense did a remarkable job of setting up a whole range of thorny issues for the government. It's no surprise that the government decided to cut a deal. Unfortunately, now we won't find out how those issues would have been resolved."
Efforts to reach U.S. Attorney McNulty for comment were unsuccessful.
The agreement now could have a bearing on the cases of two other American citizens who have been arrested as part of the war on terror: Yaser Esam Hamdi was born in the U.S. to Saudi parents and they lived there briefly while they were on an exchange program; he was captured in one of the combat zones. Jose Padilla, aka Abdullah al Muhajir, is a former Chicago street gang member who converted to Islam and is accused of plotting with al-Qaida officials to detonate a "dirty bomb" using low-grade radioactive materials. Both are being held without charges in military brigs, where they are being interrogated and called foreign combatants.
While some have cited their cases to justify the government's plans to use secretive military tribunals to prosecute some combatants, both sides in the Lindh case yesterday agreed that a captured soldier in a conflict can be tried effectively in the civilian American legal system.
"This case does show that the government can use the ordinary criminal process and doesn't need to invoke the whole military tribunal concept when it catches someone like John Lindh," Cole said.
"This case proves that the criminal justice system can be an effective tool in the fight against terrorism," McNulty told reporters outside the courthouse.
