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Taliban John: Journey's End By: Henry Mark Holzer
FrontPageMagazine.com | Wednesday, July 17, 2002


On July 15, 2002, Taliban John Walker Lindh pleaded guilty to criminal charges levied against him for his association with the Taliban and al-Qaeda. Heralded as a "surprise deal" by the Associated Press, Lindh's capitulation was anything but a surprise — not to me, nor to readers of Front Page Magazine.

Ever since Lindh was flushed out of that prison basement in Afghanistan, I've been predicting that he'd cop a plea because of the strength of the government's case and the lack of a defense. For example, in February I wrote a piece entitled "Reading Brosnahan's Mind," and said:

The government's got this ten count indictment. Mostly conspiracy. All they need is an agreement to commit a crime, and any act in furtherance by anyone. A couple dozen acts, they charge. And most of them he did...

Let's say the government can prove what's in the indictment.

What's the defense? What have I got?

Let's start with the statements. The statements to CNN come in. With them and with the evidence the government has from other sources, that's probably enough to prove the conspiracy. Or more than one. With the statement to the Bureau in evidence, it's overkill.

So, even if the statements to the FBI are excluded, and they probably won't be, we're looking at a conviction...

But if we make a strong suppression motion on all the statements, even if we lose it has potential juror educational value. Threats, coercion, bad food. Young kid.

OK, so we move to suppress all his statements. Some come in, maybe some don't. Either way, there's enough to go to the jury.

What then?

Lindh thought he was fighting against the Northern Alliance. Right. He really loved America. Right. Mental defect or disorder. Not according to the CNN reporter and film. Lindh was treated poorly by our troops in Afghanistan. Well, the government won't let the jury forget he was a captured fighter.

And none of this is a defense, anyhow.

We come back to the indictment.

Even if all Lindh's statements are suppressed, even to CNN, can the government prove that there was an agreement to commit at least one crime, that Lindh joined that conspiracy, and that someone, anyone, did something to further the agreement, even if Lindh didn't know it? If the answer is yes, the jury can convict.

And then there's the problem of putting Lindh on the stand. What can he say? Those damned overt acts are staring us in the face. How's he going to explain them? His intent can be inferred from the acts. Even if he committed half of the twenty or so.

This isn't like my teaming up with the Special Prosecutor to nail Cap Weinberger for Iran-contra. Or trying to sink Rehnquist's nomination for Chief Justice. Or even my political defense of that Irish murderer. No, we have here a pretty simple case. Lindh did what he did, and the government can probably prove it. If they do, he does a lot of time.

I'm a realist. So better keep blowing smoke, make a tough suppression motion, and look for a deal if the kid agrees.

And that's what Brosnahan did. He blew smoke at press conferences: Lindh had no animosity toward America; he never killed Americans; he was just a naïve kid; just a "foot soldier," caught up in events he didn't understand. Brosnahan tried "graymail," by trying to force the government to reveal the identity of CIA agent "Dave," who, along with the murdered Mike Spann, interrogated Lindh at the prison uprising. Then the defense lawyer tried to force the government to allow him to interrogate al-Qaeda prisoners at Guantanamo. All that failed. Then Brosnahan tried to force the CNN reporter, Robert Pelton Young, to testify at a suppression hearing, irresponsibly accusing the journalist of being a government agent, thus setting him up as a terrorist target much like the murdered Wall Street Journal reporter Daniel Pearl. Brosnahan made absurd "legal" arguments - e.g., that Lindh was exercising his constitutional rights to bear arms and to freely associate with whomever he pleased - in order to threaten the government with grounds for an appeal if Lindh was convicted. All that failed, too.

What, then, was the point of all this posturing?

Two months ago, I wrote:

Lindh has no defense. Instead, his lawyers are shotgunning the government with baseless defenses and motions to dismiss [the indictment] in the forlorn hope that perhaps something will work. Nothing will. Surely the defense understands that if Lindh goes to trial, he will be convicted. The Lindh defense needs to be reminded that for someone in their client's position, the best defense is a good plea bargain - which is where this case will probably end up.
(I also predicted privately that Lindh's plea deal would be not less than 10 nor more than 20 years.)

Only one month ago, I wrote: "don't be surprised that once Lindh's lawyers lose their motion to suppress his statements, we see a plea bargain." In this regard, I've also said that if the Lindh defense was smart, they'd make the plea deal before the judge ruled on the suppression motion. This is because, while they'd probably lose that motion and all of Lind's statements would be ruled admissible, no one (and especially the government) can ever know for sure. For that reason, the defense had some leverage until yesterday's suppression hearing. But once the judge denied Brosnahan's suppression motion and Lindh's statements were ruled admissible, he would be facing near-certain conviction and life in prison.

So, as the suppression hearing began yesterday, Lindh and Brosnahan - to avoid that conviction and sentence - threw in the towel.

John Walker Lindh — itinerant Muslim scholar, accused of conspiring to murder Americans, providing and conspiring to provide support to terrorists, and "using, carrying and possession firearms and destructive devices during crimes of violence" — has pleaded guilty to two charges: supplying services to the Taliban, and carrying explosives in the commission of a felony. "I plead guilty. I plead guilty, sir," Taliban John told United States District Judge T. S. Ellis.

When a criminal defendant pleads guilty, there is a formal "allocution," in which the judge asks, and the defendant answers, certain questions aimed at eliciting that he knows what he's doing. "Do you wish to waive your right to a trial?" Ellis asked Lindh. "Yes, Sir," replied the defendant. "Do you feel as though you can make a decision about your future today? "Yes," said the American Taliban.

That future, under the terms of the plea bargain, holds sentences of two consecutive 10-year terms. Lindh's "future" will be 20 years in a federal prison, probably a maximum security institution. (Spinning, as usual, Brosnahan optimistically noted that good behavior would make his client eligible for release in 17 years.) The deal also requires Lindh to help the government any way he can in its investigation of terrorism. A no-longer-bellicose Brosnahan noted that Lindh is "happy to cooperate in any way he can. He doesn't know a lot, but whatever they want to know, he'll talk to them. And he's glad to do it."

There are at least two important lessons to be learned from the case of Taliban John Walker Lindh.

One is that the Bush Administration - though not indicting Lindh for treason, as I and others had argued it should - unstintingly went after him with all the formidable resources of the federal government, and the Department of Justice did so while consistently and unapologetically projecting moral certainty in the righteousness of their prosecution.

The other is that in doing so, the government sent a message - as it did not in the case of Jane Fonda, whose 1972 trip to Hanoi was every bit as anti-American as Lindh's teaming up with the Taliban and al-Qaeda - that United States citizens who traffic with the enemy will be held fully accountable. Especially if, as a result of their conduct, other Americans suffer. As did Mike Spann.

The case of Taliban John is now over, and, as usual, it's a lawyer who has the last word. Brosnahan has been quoted as saying that while in prison, "his client will continue to study Arabic, the history of Islam and the Qu'ran."

Lindh will have plenty of time.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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