John Walker Lindh should have been hauled before a military tribunal. He probably would have been, were it not for the provision in President Bush's executive order limiting military tribunals' jurisdiction to non-citizens (a move thought by some to have been a preemptive strike against the Fifth Column's legal crowd). If Lindh had been tried by a military tribunal - whatever the specific charge(s) - given the facts, he almost assuredly would have been convicted. The death penalty was a distinct possibility.
Instead, Lindh was transferred from military to civilian control, and put into the civilian judicial system.
Once that happened, I argued (often in these pages) that he was indictable and convictable for treason, and that the Department of Justice should charge him with that "grandfather of all crimes," because Lindh's conduct could easily have satisfied the four elements of the crime of treason as defined by the Supreme Court of the United States: (1) intent to betray the United States, (2) which could be inferred from the requisite overt act, (3) testified to by two witnesses, (4) that gave aid and comfort to the enemy.
But that's not what happened. Instead of laying a treason charge, the government opted to indict Lindh for conspiring to murder Americans, providing and conspiring to provide support to terrorists, and "using, carrying and possessing firearms and destructive devices during crimes of violence."
These crimes - not treason, which carried a potential death sentence, and which would have given the government much more leverage in plea negotiations - were the cards the government dealt, and these were the only cards to be played, no matter how much one might have wished that the Justice Department held a better hand. (David Horowitz is correct in saying that the United States doesn't take treason seriously; see "Aid and Comfort": Jane Fonda in North Vietnam. I agree with him also that had Lindh been convicted of treason, he should have been shot).
It is with the charges that were actually brought, however - not those that might or should have been brought - that the analysis must proceed in determining who "won" in the Lindh plea deal.
It is a truism that no one settles any dispute unless they have more to gain than to lose. That calculus is entirely contextual, and depends wholly upon the relative value and disvalue one places on what's at stake. Absent other considerations - as, for example, a parent wishing to give her child a gift - no one would give up a ten-dollar bill for a five.
Applying that principle to the Lindh plea bargain, let's look at the equation.
Lindh was faced with possible life imprisonment, based largely on charges of conspiracy, which are not difficult to prove. All the government had to convince a jury of was that others had agreed to kill Americans or to support terrorism, that Lindh joined them, and that any conspirator committed any act in furtherance of their agreement. Despite the defense teams' strutting bravado, they had much to worry about in the face of these charges and the evidence that apparently existed to support them. No one should wonder why Lindh made the plea bargain to avoid conviction - and life imprisonment - on these charges.
Indeed, to the extent questions have been raised about the deal, they have been directed to why the government went for it.
Remember our calculus: No one settles unless they have more to gain than to lose.
In legal terms, the government's case had more than a few problems. No one can ever tell what a jury - or, for that matter, a single juror - will do. (See O. J. Simpson, and remember that Lindh was not charged with killing anyone.) Though unlikely, the trial judge might have suppressed some or even all of Lindh's statements. There was no way to know what testimony some of the Guantanamo detainees might have given. The government might have had to disclose information that would have been detrimental to our national security. The seeds of reversible error planted by the defense in its pre-trial motions could have sprouted on appeal and, even had Lindh been convicted, a reversal for legal error by the judge could have sent the case back for another trial. Politically, this was not a case that the government could have afforded to lose.
These considerations, primarily, argued that the government's interests would best be served by a settlement. The government had a lot to lose.
What, then, did the Justice Department have to gain?
Most important, a conviction without the necessity of a trial. The plea is a conviction, just as solid as if a jury had found Lindh guilty. There will be no appeal, no risk of reversal, no chance of Lindh escaping through some legal technicality or otherwise.
Given the nature of the crimes to which he confessed, the likelihood is that Lindh will do his time at a maximum security federal prison in the company of convicted spies and murderers, where he will be caged for 23 hours each day. Short of death, which might be easier for Lindh, this is harsh punishment - especially when you do the arithmetic: 23 hours a day, 365 days a year, for 17 years = 142,715 hours in virtual solitary confinement.
The government also gets Lindh's cooperation, backed by polygraph testing, in thorough debriefings. At the very least we'll get an inside look into al-Qaeda training, and, at best, much more intelligence about the terrorists.
Also, Lindh must testify whenever, wherever, and against whomever, the government wishes.
Finally, if Lindh doesn't cooperate, the deal is off - everything he has said by then is admissible against him in subsequent proceedings.
An important point often overlooked - perhaps understandably, in this case - is that all patriotic Americans have gained something of value: By the indictment and now conviction of John Walker Lindh, the United States Government has sent a very clear message - one not sent in too many other cases, including that of Jane Fonda - and it is this: No American citizens can act against the interests of their country with impunity. If they do, there will be a heavy price to pay.
Accordingly, when we consider the elimination of all that the government had to lose and what it obtained through the plea bargain, the conclusion is inescapable: The good guys won.
Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is co-author of the recently published Aid and Comfort: Jane Fonda in North Vietnam. Information about"Aid and Comfort," can be found at www.henrymarkholzer.com. Professor Holzer can be reached at firstname.lastname@example.org.