Afghanistan
A legal war without victory
After months of bold posturing and fierce infighting, both sides in the case of American Taliban John Walker Lindh decided to cut their risks.
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.
Both Hamdi and Padilla are being barred from seeing attorneys, and Ashcroft has suggested that the government, instead of bringing them to trial, may just hold them indefinitely, like the captured Afghan and foreign fighters being held at Guantánamo Bay in Cuba, for the duration of the war on terror. Lindh, who was caught before the other two, was instead brought to the U.S. and indicted on federal criminal charges.
Had Lindh’s case gone to trial, a number of major issues could have had an impact on those other cases involving Hamdi, Muhajir and the captives on Guantánamo — a factor that may have been paramount in the government’s decision to strike a deal with the defendant. Key among those issues was whether statements made to military interrogators could be allowed in court — particularly if those statements were made under threats of abuse, and if no Miranda warning about the right to remain silent and the right to an attorney were given to the captive.
Lindh’s attorneys, in the hearings set for this week, were preparing to question military personnel and a CNN reporter who had witnessed or participated in Lindh’s first interrogation by Spann, to determine whether he had been “read his rights” and whether he was being threatened or maltreated.
Lindh had been shot in the leg at the time he was captured, and was malnourished and dehydrated. He had claimed that his wound was left untreated for days while he was held in a dark, closed metal shipping container, and that he was only removed, while taped to a stretcher, when he was being interrogated. In his court papers, Lindh had alleged that when he was finally read his Miranda rights by an FBI investigator, on Dec. 3, at each point where it refers to a right to counsel, the agent would add, “Of course there are no lawyers out here.”
At that point, Walker1′s family had already hired San Francisco attorney James J. Brosnahan, something Lindh was not told. “The government never would have gotten away with using confessions obtained through that kind of treatment in any other case,” Cole said yesterday.
The government has denied that Lindh was mistreated in any way during his captivity, and Lindh, as part of his plea bargain, has had to agree to that.
A second issue that arose in the Lindh case that will now remain unresolved is whether he had a right to call, as witnesses, other captured combatants. The government, in its filings in the case, had acknowledged that some of the captured al-Qaida fighters being held at Guantánamo Naval Base had exculpatory information concerning Lindh. Specifically, according to sources familiar with the case (in which most documents have been sealed), they were apparently saying that the uprising of captives during which Spann was killed had been spontaneous, not planned, and was motivated by fears of what would happen to them at the hands of their Northern Alliance captors, not by a desire to kill the Americans.
When Lindh’s lawyers said they wanted to go to the base to interview those witnesses, however, the government objected, saying that they were concerned that such interviews could jeopardize the ongoing interrogation process. As someone close to the Lindh case puts it, “What they meant was that they were afraid those guys would find out that they might have a right to a lawyer and a trial.”
Judge T.S. Ellis declined to allow the defense to question the witnesses in person, requiring them instead to provide military interrogators at Guantánamo with written questions, which would be put to the potential witnesses as part of regular interrogation sessions. Written responses were being supplied to the defense. Significantly, however, the judge indicated at the time that he was inclined to think the defense would have the right to put those witnesses on the stand once the formal trial began — something the government was not happy about.
With Lindh’s case over but for the scheduled Oct. 4 sentencing, the legal war on terror now moves to Guantánamo, and to the two other American captives from the conflict, both of whom are expected to challenge their incarceration without charges.
Lindh, meanwhile, may yet be free sooner than the plea agreement suggests. The agreement refers to his being returned to prison if he is in violation of the terms of any “supervised release.” The judge is not bound by the 20-year sentence cited in the agreement — though that does set a maximum term — and could sentence him to a shorter stay in prison.
Lindh also has agreed to cooperate with prosecutors and the Department of Defense in efforts to combat terrorism.
Where the wounded are
Wars don't just cause casualties among soldiers, they drain medical staff. I traveled to see the costs firsthand
A soldier is prepared for an operation at Landstuhl Regional Medical Center. (Credit: Reuters/Kai Pfaffenbach) The weather’s getting warmer in Afghanistan and the war there is heating up again. That means – as it has meant every year for more than a decade — that the pace will quicken at the Landstuhl Regional Medical Center in Germany. More casualties will be brought to this largest American military hospital outside the United States. The Critical Care Air Transport teams and their C-17 Globemasters will fly in from “downrange,” as they call the Afghan battleground, and the injured will be brought by ambulance bus from nearby Ramstein Air Force Base to the hospital front door.
Continue Reading CloseMichael Winship is senior writing fellow at Demos and a senior writer of the new series, Moyers & Company, airing on public television. More Michael Winship.
NATO invites Pakistan to summit
A sign that Islamabad is ready to reopen its western border to NATO troops on their way to Afghanistan
Oil tankers, which were used to transport NATO fuel supplies to Afghanistan, are parked at a compound in Karachi, Pakistan, Tuesday, May 15, 2012. NATO on Tuesday invited Pakistani President Asif Ali Zardari to the alliance's summit in Chicago, after signs that the country could be moving to reopen its Afghan border to NATO military supplies. (AP Photo/Shakil Adil)(Credit: AP) ISLAMABAD (AP) — NATO on Tuesday invited Pakistan’s president to the upcoming Chicago summit on Afghanistan, the strongest sign yet that Islamabad is ready to reopen its western border to U.S. and NATO military supplies heading to the war in the neighboring country.
Pakistan blocked the routes in November after American airstrikes killed 24 of its troops on the Afghan border. The attack sent ties between Washington and Islamabad to new lows, threatening regional cooperation needed for negotiating an end to the Afghan war.
Continue Reading CloseAfghanistan, I can’t quit you
My mom pushed me to join the Marines. Now that she's gone, I'm still drawn to war zones
A child flies a kite in Kabul on Tuesday Mar. 27, 2012. (Credit: Geoffrey Ingersoll) The heat. That’s what I remember most. Shimmery and bright. Blinding. Stifling. Heeee-eeaat.
The kind that’s not just on you, wrapped around you, but balled up and pulsing inside you — a desert blanket with teeth. It’s a type of heat that makes your skin cry and your eyeballs sweat, even in the shade; heat like a predator you can’t run away from.
I notice it right as I get off the plane — not just the degrees but also the dust. Dust you can smell, kicked up by a thousand years of struggle. In a region this old, I’m sure each breath carries a dose of unintended history: Inhale, Alexander the Great; exhale, the Ottoman Empire; inhale, the USSR; exhale, the Taliban.
Continue Reading CloseGeoffrey Ingersoll is a freelance journalist, documentarian, writer, photographer, and veteran of Operation Iraqi Freedom. He is the recipient of the Sam Stavisky Award for Combat Reporting. More Geoffrey Ingersoll.
What Obama didn’t mention in Kabul
Just outside the Afghan capital, the Taliban is in control and preparing for a wider war
President Barack Obama addresses troops at Bagram Air Field, Afghanistan, Wednesday, May 2, 2012. (AP Photo/Charles Dharapak)(Credit: AP) MAHMUD RAQI, Afghanistan — The office of Kapisa’s governor sits high on a hilltop overlooking the provincial capital, Mahmud Raqi. It has a beautiful view of the river below and the mountains, trees and fields that stretch into the distance.
Beneath the tranquil surface, however, lies a grim truth. Just outside town roadside bombs are planted to target NATO convoys.
America’s real Hunger Games
Young people are already being sacrificed at the whims of the 1%. Just look at Iraq and Afghanistan
U.S. Army soldiers respond after a suicide attack on the US..-led provincial reconstruction team (PRT) compound in the Behsood district of Jalalabad, east of Kabul Afghanistan, on Sunday, April 15, 15 2012. (Credit: AP Phot/Rahmat Gul) When I was growing up, I ate books for breakfast, lunch and dinner, and since I was constantly running out of reading material, I read everyone else’s — which for a girl with older brothers meant science fiction. The books were supposed to be about the future, but they always turned out to be very much about this very moment.
Some of them — Robert Heinlein’s “Stranger in a Strange Land” — were comically of their time: that novel’s vision of the good life seemed to owe an awful lot to the Playboy Mansion in its prime, only with telepathy and being nice added in. Frank Herbert’s “Dune” had similarly sixties social mores, but its vision of an intergalactic world of disciplined desert jihadis and a great game for the substance that made all long-distance transit possible is even more relevant now. Think: drug cartels meet the oil industry in the deep desert.
Continue Reading CloseRebecca Solnit grew up in California public libraries and is thrilled to be revisiting them all over the state as part of the Cal Humanities California Reads project, which is now featuring five books, including her A Paradise Built in Hell: The Extraordinary Communities That Arise in Disaster. More Rebecca Solnit.
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