THE CASE OF JOHNNY JIHAD
by
George W. C. McCarter
(copyright
2002)
It was widely reported in mid July
that John Walker Lindh pled guilty in federal court to two felonies, and that
he will be sentenced to twenty years in prison as a result. Since there is no parole in the federal
system, Lindh will serve virtually the entire sentence, a spell of hard time by
anyone’s measure. According to most
media reports, the typical public reaction was that Lindh is a traitor who
deserves an even harsher sentence. The
government, however, knew better. “Twenty years is a
period of time almost as long as he's been alive," U.S. Attorney Paul
McNulty was quoted as saying at the time of the plea. "This is a major
sentence." In
view of what Lindh actually admitted when he pled guilty (carrying weapons
while serving in the Taliban army), it is not surprising that McNulty crowed
about the sentence rather than the plea.
Lindh is the government’s only conviction of a so-called “terrorist” since September 11, and John Ashcroft’s Department of Justice would have us believe it has removed a major security risk from the streets. The American people were led to assume the gravity of Lindh’s offenses by DOJ’s public (but surely never genuine) flirtation with the death penalty and by articles such as one by a prominent law school dean in the Wall Street Journal, urging that Lindh be tried for treason. In denying Lindh bail, a federal magistrate ruled: "It may be argued by the defense that the defendant is a loyal American. But the evidence before the court belies that assumption." Due to a relentless public relations campaign by the Justice Department, the American people readily came to see the “American Taliban” as a genuine terrorist, and to link him implicitly with the events of September 11.
But beyond outbursts of rhetoric
from federal bureaucrats, there has been little public discussion of what
crimes John Walker Lindh actually committed, what evidence the government has
against him, what offenses he pled guilty to, and why he did so. What Lindh conceded is far different from
what the government originally accused him of, and the twenty year sentence he
faces is not justified by the harmless offenses he admitted. And although his plea was technically
voluntary, the public’s (and hence the jury pool’s) consistently negative view
of him as a result of DOJ’s false and prejudicial media campaign must have
weighed heavily in his or his lawyers’ calculations.
The original indictment claimed that Lindh
“engage[d] in a conspiracy to kill nationals of the United States, including
civilians and military personnel, by committing murder.” The
mainstream media for the most part uncritically accepted the government’s line
that Lindh was an evil and dangerous fanatic who deserves every minute of the
twenty years he faces. For example the
New York Times editorial on the plea claimed he admitted to “serious
crimes”. The Wall Street Journal’s
James Taranto described those offenses as “aiding terrorists and carrying
explosives.” Taranto’s disingenuous precis
is just accurate enough to be grossly unfair.
A more complete account was provided by John Riley in Newsday: “Lindh
pleaded guilty to supplying services to the Taliban and carrying a rifle and
grenades while supplying services.”
That sounds more like Ernest Hemingway in the Spanish Civil War than it
does like “aiding terrorists”.
Riley
further reported that Lindh testified on the day of the plea as follows: “I
provided my services as a soldier to the Taliban last year from August to
November. In the course of doing so I
carried a rifle and two grenades, and I did so knowing that it was
illegal." If John Walker Lindh knew before the
Americans captured him in December that serving as a foot soldier in the
Taliban army was illegal under U.S. law, he is a better lawyer than I am. Unless the judge probed Lindh as to the
nature and extent of his knowledge of U.S. law, it doesn’t take much of a cynic
to assume his “knowing that it was illegal” line was a convenient little
perjury, necessary for the court to accept his plea. And it is quite possible Riley’s version of what Lindh said is
mistaken. The only “knowledge” Lindh
admitted to in the written plea agreement, as opposed to Riley’s account of
what he said in court, was that he “knowingly carried with him an AKM rifle and
two grenades”.
But whether Lindh knew it or not,
his actions did indeed violate U.S. law.
The reason Lindh’s foreign service, unlike Hemingway’s, was technically
illegal is made plain in the government’s indictment:
The
actions and policies of the Taliban in Afghanistan, in allowing territory under
its control in Afghanistan to be used as a safe haven and base of operations
for Usama bin Ladin and the Al-Qaida organization who have committed and
threaten to continue to commit acts of violence against the United States and
its nationals, constitute an unusual and extraordinary threat to the national
security and foreign policy of the United States.
In his Executive Order 13129, the President prohibited, among other things, the making or receiving of any contribution of funds, goods, or services to or for the benefit of the Taliban.
Lindh joined the Taliban’s army in August of
2001, and a month later real terrorists attacked the Pentagon and the World
Trade Center. Shortly thereafter, the
U.S. government (sort of) declared war on the Taliban. John Walker Lindh never attacked the United
States – the United States and its surrogate, the Northern Alliance, attacked
him. What was Lindh supposed to do at
that point, resign? The U. S. Army
takes a dim view of private soldiers “resigning”, especially in wartime. It is safe to assume the Taliban’s rules on
desertion were at least as strict as ours, and we have probably shot deserters
in all of our major wars through World War II.
In any event, the “crimes” of joining the Taliban and carrying weapons
had already been committed when American forces arrived in Afghanistan. Resigning, even if possible, would not have
expiated his technical guilt.
The government has never claimed to have eyewitness evidence that Lindh took up arms against the United States. The prosecution was always based on his own admissions, such as they are. The government has not released transcripts of its interrogations, but it is likely they are no more incriminating than interviews Lindh gave to the public press, since it is the latter that Lindh’s lawyers tried unsuccessfully to exclude from evidence at trial. It is worth looking closely at what Lindh actually said, to put the significance of his guilty plea into proper perspective.
Lindh’s most celebrated interview was with CNN’s Robert Pelton, first aired on December 21, 2001. A transcript is available at CNN’s website, and it shows that, after reading “literature of the scholars,” Lindh says his “heart became attached” to the Taliban; that he attended several “training camps” for non-Afghan volunteers; and that he was captured by the Northern Alliance after a 100 mile march on foot to Mazar-e-Sharif. More important that what was on the tape is what was not: evidence that Lindh was a terrorist or was hostile to the United States in any way. The tape did confirm that Lindh served the Taliban and probably carried a weapon while doing so. (He admitted that when the Northern Alliance ordered the captured Taliban to “give all of the weapons many people were hesitant, so many of them held -- they hid inside of their clothes hand grenades, which is against what we had agreed upon.”) So yes, the “crimes” John Walker Lindh pled guilty to did occur, if you leave aside the issue of mens rea, or guilty intent. That is all the infamous CNN tape proves, and it isn’t much.
There is another, arguably more incriminating,
interview that Lindh gave to Colin Soloway of Newsweek on December 1 “while waiting to be taken into detention along with over a
dozen other wounded men, mostly Arabs, in a large cargo truck,” according to
Soloway. The Newsweek article has
received less media attention than the Pelton interview, perhaps because there
is no tape to back it up. But recently
such defenders of the prosecution as the Wall Street Journal and The New
Republic have cited it as proof that Lindh was an enemy of the United
States. Here is the offending passage
in its entirety:
When asked if
he supported the September 11 attacks, he hesitated. “That requires a pretty
long and complicated explanation. I haven’t eaten for two or three days, and my
mind is not really in shape to give you a coherent answer.” When pressed, he
said, “Yes, I supported it.”
That
sounds like a damning admission: a
native-born American serving in a foreign army “supported” the murder of 3,000
mostly American civilians. If true,
that was big news, and a good reporter would have run with it. But Soloway dropped it. Instead of following up by asking in what ways
Lindh “supported” the attacks, whether he had any foreknowledge of them, or how
much he even knew about them while serving in the Taliban army, Soloway’s
article immediately shifts gears. It
recounts at length, and in a manner sympathetic to Lindh, the circumstances of
his capture and wounding at Mazar-e-Sharif.
If Soloway, who claims to have heard the remark about supporting the
September 11 attacks, attached so little importance to it, should we do any
more? After all, Lindh asserted at the
time that he was having a hard time giving “a coherent answer”. When he finally gave his answer, how had he
been “pressed”? And his response, “I
supported it,” was in the past tense.
Had he changed his mind when he received more information? And, even in the worst case, since no one
claims his alleged support went beyond mere cheerleading, this “admission,” if
true, is nothing more than a particularly tasteless exercise of Lindh’s First
Amendment rights. (Incidentally, the
same Colin Soloway who claims to have heard the “I supported it” remark
co-authored a later article in Newsweek that attributed the government’s
acceptance of the guilty plea to the “growing realization – that the government
had stoked a bonfire to fry a guppy.”)
The enthusiasm in media and
political circles for “throwing the book” at John Walker Lindh reveals an
indifference to the facts and a strange lack of empathy. Lindh went to Pakistan, and then
Afghanistan, for entirely idealistic reasons, even if few Americans share those
ideals. He almost certainly joined the
Taliban army without any notion he could be prosecuted for it, and he then
endured hardships and tortures beyond anything experienced by contemporary
American soldiers. (His account of the
prisoners’ uprising at Mazar-e-Sharif, and their captors’ brutal response, is
terrifying.) There is no public
evidence that he ever committed, or intended to commit, any overt act against
the United States or against American personnel. With a fair trial and capable legal representation, it is hard to
imagine a jury convicting him of anything.
Why then did he plead guilty? Defenders of DOJ will argue that the
government must have had evidence of real wrongdoing by Lindh, that Lindh
copped a plea to avoid facing that evidence at trial, and that the government
acquiesced to protect vital sources from testifying at trial. All that is possible, but there is nothing
in the record beyond Lindh’s plea itself to support it. Since no incriminating evidence has been
leaked, and since even the government didn’t claim it had more evidence when it
accepted the plea, some other explanation seems likely. I suspect Lindh and his lawyers felt they
couldn’t get a fair trial, and that the government took unfair advantage of
that fear to scare Lindh into agreeing to a sentence he was unlikely to receive
at the end of a completed judicial process.
The government chose to bring the
case in Alexandria, Virginia, where the jury pool is heavily laden with
military personnel, federal employees, and their friends and families. The judge was plainly hostile to the
defense, if widely reported shouting matches are any indication. As we have seen, mainstream media coverage
was a relentless anti-Lindh drumbeat, from death penalty to treason to Jihad
Johnny and other epithets. And, of
course, he was technically guilty of at least the “crimes” he pled to. If trial in a hostile forum was certain to
result in conviction of those so-called crimes, and possibly others far more
serious, taking the plea seems the reasonable thing to do.
Under the circumstances, it is hard to
criticize Lindh’s lawyers for what might at first look like a failure of
nerve. But the government’s zeal to
incarcerate Lindh for twenty years is another matter. Quite simply, that sentence is vastly, grossly disproportionate
to anything we know about what John Walker Lindh actually did. It calls to mind the old saw that the
government can “get” anyone it wants to, if only it tries hard enough. From the outset, John Ashcroft wanted to
“get” John Walker Lindh. Apparently
indifferent to ethical issues of pretrial publicity, Ashcroft announced to the
world when Lindh was indicted that “Americans who love their country do not
dedicate themselves to killing Americans” and that the US attorneys trying the
case would “secure justice for the nation that John Walker Lindh betrayed” and
“uphold values that he dedicated himself to destroy.” The government utterly failed to back up any of those extravagant
charges. No wonder Ashcroft let his
subordinates give the press conference to announce the pitiful guilty plea a
few months later.
For the government to put a naïve and
basically guiltless young man in prison for twenty years as a trophy for an
ambitious bureaucrat, just because it can, crosses a moral and ethical
line. If there is good cause to lock
up Mr. Lindh for twenty years, the government should make it public, for it has
signally failed to make such a case to date.
Failing that, Judge T. S. Ellis III should reject the coercive “bargain”
when he sentences Lindh on October 4, and require a deal more in line with the
trivial and technical infractions Lindh appears to have committed.
More likely, the principal actors now on
stage are incapable of such dispassionate mercy. It will fall to a future president (or perhaps even this one, who
has referred to Lindh as a “poor fellow”) to see the facts more clearly than we
do now and to pardon him or commute the sentence. John Walker Lindh was prosecuted because he was an American
supporter of radical Islam around the time of September 11, not because he
committed any real crime. As long as he
remains incarcerated, the United States will hold at least one political
prisoner.