TCS Daily

Next Time, Don't Blink

By Pejman Yousefzadeh - July 25, 2002 12:00 AM

The saga of John Walker Lindh's legal battles came to an end last week with Lindh pleading guilty to two of the government's ten counts against him, and agreeing to serve what will probably amount to 20 years in prison for having been a member of the Taliban, and having taken up arms against the United States. The government claimed victory, stating that it would be able to gain valuable information about the Taliban and al-Qaeda organization from Lindh, who claims to have met Osama bin Laden. However, despite the government's claims, the case of John Walker Lindh demonstrates anew the need for military tribunals to be implemented, and used.

The Administration's decision to forego the use of military tribunals in the Lindh case was a profound mistake. It lost the opportunity to impose a harsh and stiff sentence on Lindh. Instead, the plea bargain allows him to get out of prison before he even reaches middle age. While the government claims that it will be able to get information out of Lindh, it is open to question just how much information Lindh had access to. His usefulness in revealing operational details about the Taliban and al-Qaeda is questionable, at best. Lindh's spectacular and fantastical claim that he once met Osama bin Laden is unverified and doubted by many sophisticated observers.

Moreover, by allowing the Lindh saga to play out in civilian court, the government allowed defense attorneys for Lindh, led by James Brosnahan, to create a battle plan for the defense of future terrorist suspects and traitors to the United States. Brosnahan and his team of defense attorneys forced the government to settle the case by doing what is always done in defending criminal cases involving matters of national security-demanding access to classified and confidential documents that the defense knew the government was loathe to turn over for fear of compromising various intelligence and military operations and personnel. Faced with the options of either having to drop their case against Lindh altogether-which is clearly unacceptable-or releasing the documents and courting a potential intelligence and military disaster as a result, the government felt that it had no choice but to settle the case.

Bear in mind that the government's acceptance of the plea agreement occurred despite the fact that the Lindh case was being heard in one of the most conservative judicial districts in the country. The atmosphere of the community of Alexandria, Virginia is ideal for the prosecution of a case against a terrorist suspect. A jury pool drawn from the citizens of Alexandria would have been a dream jury for the government-made up of citizens who are highly patriotic, and who generally look with disgust and distaste upon Lindh's apostasy. Under different circumstances, the government would have likely rejected any and all plea bargain agreements that did not comport with its sentencing objectives for Lindh, believing justifiably that it would be able to win both a guilty plea and a maximum sentence against Lindh in a forum such as the one offered in Alexandria. However, by refusing to use military tribunals, the Bush Administration allowed Lindh's defense attorneys to negate this advantage by holding the release of classified military and intelligence documents over the head of the government like a latter-day Sword of Damocles. Thus, the government failed to capture the maximum sentence it sought against Lindh, and had to agree to the plea bargain. The threat that classified information may be made public is the exact scenario feared by Judge Abraham D. Sofaer and Paul R. Williams, when they wrote in favor of the creation of military tribunals. Now that the tribunals have been created, their non-use has confirmed Sofaer and Williams's concerns. The government got the worst of both worlds.

The defense tactics in the Lindh case are sure to be repeated against the government in future trials before a civilian court, thus potentially causing the government to enter into other questionable plea agreements. Assuredly, not all cases deserve to go before a military tribunal. But when the government is confronted with a case that appears tailor-made for a military tribunal to handle, and then allows that case to be tried before a civilian court, it invites the same kind of tactics used against it by the Lindh defense team-with the accompanying possibility that the government will not be able to achieve the sentencing terms that it may desire.

Military tribunals were specifically designed to help the government avoid the uncomfortable choice between risking the disclosure of classified documents, and having to drop charges against a terrorist suspect for fear of releasing those documents. Had the case been tried before a military panel, the government would have been able to release the evidence in a closed setting so that the defense would have had access to it-thus ensuring Lindh's constitutional rights-while at the same time protecting the evidence from full public disclosure, which would preserve the integrity of American military and intelligence operations. Thus, Brosnahan and the other defense attorneys would not have been able to coerce the government into accepting a plea agreement when the government could very well have gotten an conviction and the punishment it sought.

The government could have taken aggressive steps to ensure that a military panel would try John Walker Lindh. The tribunals were set up to judge cases against non-American terrorist suspects, and there is ample legal support for the proposition that Lindh should have been stripped of his citizenship as an American, thus qualifying him for judgment before a tribunal. Title 8 of the United States Code, Section 1481(a)(3) states that American citizenship may be lost thusly:

A person who is a national of the United States whether by birth of by naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality . . . entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States . . .

Simple law-fact analysis reveals that Lindh should have been found by the government to have renounced his citizenship. Lindh "enter[ed], or serv[ed] in, the armed forces of a foreign state" by having attached himself to the Taliban as a soldier while the Taliban was "engaged in hostilities" against American military forces fighting to oust the Taliban from power. The government gave a specific and detailed charge against Lindh to this effect, and Lindh admitted in open court his active involvement with the Taliban in its war against the United States by stating that "I provided my services as a soldier to the Taliban last year, from about August to November. In the course of doing so, I carried a rifle and two grenades. And I did so knowingly and willingly, knowing that it was illegal." Lindh's admission could have been proven independently by the government, qualifying him to be stripped of his citizenship, and to be judged by a military tribunal.

In addition to the danger that the government will again face the unattractive choice it had in the Lindh case-either dropping charges, or going to trial with the risk that confidential documents will be revealed during the course of the trial-another danger exists as well; that of a terrorist suspect using the public forum of a civilian courtroom to propagandize against the United States, as Zacarias Moussaoui is currently doing in his trial. Again, to be sure, not all cases are amenable to resolution through the use of military tribunals. But when such a case comes along-as it did in the Lindh case-it is incumbent upon the government to use the tools at its disposal to effect the maximum punishment against enemies of the United States, without compromising military or intelligence methods.

Mistakes are valuable in that we can learn from them, and if we are consequently less likely to repeat them. If the Bush Administration learns from the resolution of the Lindh case, and avoids trying similar cases before a civilian court, the manner in which John Walker Lindh's legal status was resolved could serve as a valuable object lesson for the government in the continuing war on terrorism. However, if similar mistakes are made with future terrorist suspects, it will severely undermine the ability of the United States to gain the maximum degree of information from terrorist suspects, or to impose upon them the maximum punishment allowable by law. Military tribunals were created with the knowledge that certain matters cannot be handled by civilian courts. The mere recognition of such a fact is valuable. However, when such knowledge is not implemented into practice, it is useless.



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