A Walker Doesn't Walk

Jacob Sullum | April 23, 2007

In his New York Times legal column, Adam Liptak notes that the plea deal struck by John Walker Lindh's lawyers, admired at the time because it spared him a potential life sentence, is looking crappier every day. Although Lindh joined the Taliban's war with the Northern Alliance in Afghanistan, he did not fight Americans or participate in terrorism. Yet he is being punished much more severely than men captured in Afghanistan around the same time whose offenses were as bad or worse. Yaser Hamdi, who also was accused of helping the Taliban, was held in military custody without charge from 2001 until 2004, when he was released and sent to Saudi Arabia after the Supreme Court ruled that he had a right to challenge his detention. David Hicks, the Australian who recently admitted providing material support to Al Qaeda, received a nine-month sentence from a military commission (on top of the five years he had already been imprisoned at Guantanamo Bay) and will be free by the end of the year. In effect, Hamdi got three years and Hicks got six, while Lindh, probably the least culpable of the three, got 20. With credit for good behavior, he has 13 more years to serve. Since he signed a plea agreement, his only hope of getting out sooner is commutation.

Clearly, due process, which Lindh got but Hamdi and Hicks did not, is not the same as lenience.  In fact, judging from these cases, the conservatives who insist on military detention for people like Hicks and Hamdi are soft on terrorism.

Comments

thoreau|4.23.07 @ 11:36AM|#

Clearly, due process, which Lindh got but Hamdi and Hicks did not, is not the same as lenience.

Indeed. A well-documented case that stands up to scrutiny can be used to justify a very severe sentence. OTOH, sloppy work can lead to bad guys getting lenient treatment.

|4.23.07 @ 11:45AM|#

I believe Lindh was a part of the prison revolt that got CIA agent Johnny Spain killed. He also is shown on tape refusing to cooperate with Americans when captured. If it had been the case that Walker was just hanging around in Afghanistan out of some misguided view of Islam and got caught up in the war, but came out saying thank God you are here when he saw the first American, then I would agree that he should be shown some leniency. That is not what happened. He made no attempt to leave Afghanistan or abandon the Taliban after a state of war existed between them and the U.S. He fought on the other side and as a U.S. citizen got exactly what he deserved. The fact that other people haven't gotten what they deserved due to government incompetence, doesn't let Lindh off the hook.

Dave W.|4.23.07 @ 12:13PM|#

I remember thinking his plea bargain sounded lousy at the time, due to the weakness of the evidence against him, although the prevailing attitude at the time seemed to be that he got a decent deal. I thought that he should have opted for a judge trial, and I still think that.

His problem was that he did not take advantage of his due process. Then again, if some of the stories about how they transported him are true, he might not have gotten due process.

Jack|4.23.07 @ 12:18PM|#

Wait...you're trying to tell me that due process strengthens the rule of law? Next thing you know you're gonna tell me it's easier to put criminals behind bars without torturing them because you don't have to admit you tortured them!

|4.23.07 @ 12:51PM|#

"""I believe Lindh was a part of the prison revolt that got CIA agent Johnny Spain killed."""

Only because that's what you've been told. It came from the same organization that said Pat Tillman should receive a Silver Star for fighting the enemy, the DoD. We have been bullshitted so much by the Bush admin, why should we believe this. I have no idea but their M.O. has been tell the public what they want to hear to get what I want. They wanted to make an example of Walker, so I'll bet they hyped his activities to make him look bad to the American people. Who knows what he really did? Walker does, and they don't want him to talk.

"""He made no attempt to leave Afghanistan or abandon the Taliban after a state of war existed between them and the U.S."""

How do you know? It's not like he could have booked thru cheapflights.com I imagine when the war started, trying to get out became a much more difficult task?


"""He fought on the other side and as a U.S. citizen got exactly what he deserved. """"

We don't really know if he "fought" anyone. What evidence are you using to support your claim?

I'm not defending the guy, he's a chump to go over there in the first place. My problem is that the Bush admins credibility track record is so poor, I can't take anything they have said at face value.

|4.23.07 @ 1:17PM|#

I don't know tricky vic, perhaps the Bush administration bought off the judge to. The judge had to sign off on the plea bargain and Lindh had to admit to being guilty or it wouldn't have happened. Further, there is a videotape of Lindh being interrogated by Spain and it shows him to be a typical recalcitrant jihadi. If he were an innocent person caught up in the war he would have been telling Spain "hey I am an American" not sitting there in silence.

It amazes me how Reason will come to the defense of someone who embraces an ideology so antithetical to everything Reason is supposed to represent. It is times like these when the real prejudices of the Reason staff and readers comes out. If Lindh had been a nutcase Christian fighting with the Serbs in Kosovo I seriously doubt that anyone at Reason would have cared what happened to him. Jihaidis in contrast get a lot of sympathy. I guess Lindh is fortunate that he counts George Bush as an enemy. That fact will always get people like Tricky Vic on his side regardless of how loathsome his actions may have been.

|4.23.07 @ 1:24PM|#

""""That fact will always get people like Tricky Vic on his side regardless of how loathsome his actions may have been.""""

Read all of my post next time. I clearly said I wasn't defending him. He gets what he deserves when he pleads guilty.

|4.23.07 @ 1:31PM|#

I would like to pose some questions to John Walker Lindh's lawyers, and to the readers of this blog.

But first I would like to quote the Sixth Amendment in its entirety:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Now here's the first question: In what state and disctrict, "previously ascertained by law", do we find Afghanistan?

Second question: If Afghanistan is not located in a lawfully ascertained district of these United States, is that a defect in subject matter jurisdiction or just a venue issue?

Third question: If the plea bargain and sentencing occurred in a court lacking jurisdiction, is that not a defect which can be raised at any point in time?

Maybe Mr. Lindh's treatment as an enemy soldier or "combatant" would have been more appropriate.

Fourth question: How did the Thomas Jefferson Administration treat pirates unaffiliated with any recognized government, but no less engaged in war against the United States than was Lindh?

|4.23.07 @ 1:34PM|#

In his own words

"Ellis then asked Walker Lindh to say, in his own words, what he was admitting to. "I provided services as a soldier to the Taliban last year. I carried a rifle and two grenades," he said, adding that he knew doing so was illegal."
Source http://archives.cnn.com/2002/LAW/07/15/walker.lindh.hearing/index.html


Of course carrying an automatic weapon and grenades are illegal here too. That's moot.

He did not admit to fighting anyone nor did he admit to taking part in the revolt that got Jonny Span killed. Two things you claimed he did.

Of course he was with the Taliban. I don't dispute that. I am merely questioning the events as they told to us by people with a bad track record on truth.

|4.23.07 @ 1:43PM|#

John, the story isn't about having sympathy for Lindh. It's an examination of how the legal system works post 9/11. It could be argued that the fact that you think it's about "sympathy" for a Muslim fundamentalist (where none is expressed) says a lot more about your prejudices than Reason's, I think.

|4.23.07 @ 1:51PM|#

"It amazes me how Reason will come to the defense of someone who embraces an ideology so antithetical to everything Reason is supposed to represent."

Yes, it's almost as if they value restraints on government more than seeing the adherents of ocmpeting ideologies punished.

|4.23.07 @ 2:13PM|#

aser Hamdi, who also was accused of helping the Taliban, was held in military custody without charge from 2001 until 2004, when he was released and sent to Saudi Arabia after the Supreme Court ruled that he had a right to challenge his detention.

Perhaps we should have handed Lindh over to the Saudis, too. I'm sure they would have appreciated a crack at him also.

|4.23.07 @ 2:38PM|#

Still waiting for answers to my questions.

|4.23.07 @ 2:49PM|#

Second question: If Afghanistan is not located in a lawfully ascertained district of these United States, is that a defect in subject matter jurisdiction or just a venue issue?

I think it's just a venue issue. Ezra Pound was indicted by the grand jury for the U.S. District Court for the District of Columbia, and Ivo d'Aquino (Tokyo Rose) was tried before the U.S. District Court for the Northern District of California. Lindh was tried in the U.S. District Court for the Eastern District of Virginia, because the first U.S. soil he touched when he was brought back was in that district.

|4.23.07 @ 2:52PM|#

"""He fought on the other side and as a U.S. citizen got exactly what he deserved. """"

We don't really know if he "fought" anyone. What evidence are you using to support your claim?

Actually, he was fighting the Northern Alliance. It's as if an American had joined the British army in 1811 to fight Napoleon, and then, after the war of 1812 broke out, was taken prisoner by the French, who turned him over to the Americans, who accused him of being a traitor.

|4.23.07 @ 4:12PM|#

"come to the defense of someone who embraces an ideology so antithetical to everything Reason is supposed to represent"

It's called libertarianism. If you think someone is unjustly deprived of liberty, you don't care what his ideology is. Especially when there is a lynch mob, especially a lynch mob one has some sympathies with. Nazis in Skokie and all that.

Reason is a libertarian site, last I checked, though I have to skip Michael Young's latests.

|4.23.07 @ 5:04PM|#

Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.


Seems pretty fucking cut and dry to me.

|4.23.07 @ 10:47PM|#

"Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

Seems pretty fucking cut and dry to me."

I agree. It is very fucking darn cut and dry that that is the definition of treason in the constitution. {Actually, not a particularly cut and dry definition however: "adhering to their enemies/aid and comfort". What's that -- Scotch tape? giving them a pillow?)

Anyway assuming it to be cut and dry, the constitution says:

Version 1. "Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

It does not say:

Version 2. "Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. John Walker Lindh is presumptively in violation for actions that will happen in 2001-2002."

The difference between the real cut and dried shaked and baked version 1 and fictional cut and dry version 2 is where the concept of due process, and respect for process in the deprivation of rights, comes in.

Personally I think he does make the treason cut. But it's not too much to insist the government prove its case rather than offer a faith-based judgment.

Trading Cards|4.24.07 @ 7:00AM|#

When Lindh went over to Afghanistan, the jihadi fighters weren't really at war with anybody (except perhaps each other). A state of (undeclared) war only existed after he had been there some time... and no, we really don't have any material evidence of him actually taking part in violence against Americn soldiers.

It's all about due process and basic human rights, both of which Lindh was deprived of.

|4.25.07 @ 2:25PM|#

"Article III Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

Well, see, Lindh was adhering to the Taliban initially when we were still giving them money and stuff, and surely wouldn't have minded at all if Lindh had used the grenades and weapons in support of Taliban anti-opium operations.

Then, a third party, whom Lindh had no influence over, took actions that caused the US to eventually adopt an adversarial relationship to the Taliban when the Taliban didn't turn bin Laden over.

I'm guessing that by that point, Lindh was stuck with no particularly good options.