Crime and Punishment  

The Case of Johnny Jihad

by George W.C. McCarter

Why would a man who can prove his innocence plead guilty to a loathsome crime?

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It was widely reported in mid-July that John Walker Lindh pled guilty in federal court to two felonies, and that he will be sentenced to 20 years in prison as a result. Since there is no parole in the federal system, Lindh will serve virtually the entire sentence, a spell of hard time by anyone's measure. According to most media reports, the typical public reaction was that Lindh is a traitor who deserves an even harsher sentence. The government, however, knew better. "Twenty years is a period of time almost as long as he's been alive," U.S. Attorney Paul McNulty was quoted as saying at the time of the plea. "This is a major sentence." In view of what Lindh actually admitted when he pled guilty (carrying weapons while serving in the Taliban army), it is not surprising that McNulty crowed about the sentence rather than the plea.

Lindh is the government's only conviction of a so-called "terrorist" since Sept. 11, and John Ashcroft's Department of Justice would have us believe it has removed a major security risk from the streets. The American people were led to assume the gravity of Lindh's offenses by DOJ's public (but surely never genuine) flirtation with the death penalty and by articles such as one by a prominent law school dean in The Wall Street Journal, urging that Lindh be tried for treason. In denying Lindh bail, a federal magistrate ruled: "It may be argued by the defense that the defendant is a loyal American. But the evidence before the court belies that assumption." Thanks to a carefully orchestrated public relations campaign by the Justice Department, the American people readily came to see the "American Taliban" as a genuine terrorist, and to link him implicitly with the events of Sept. 11.

But beyond outbursts of rhetoric from federal bureaucrats, there has been little public discussion of what crimes John Walker Lindh actually committed, what evidence the government has against him, what offenses he pled guilty to, and why he did so. What Lindh conceded is far different from what the government originally accused him of, and the 20-year sentence he faces is not justified by the harmless offenses he admitted. And although his plea was technically voluntary, the public's (and hence the jury pool's) consistently negative view of him as a result of DOJ's false and prejudicial media campaign must have weighed heavily in his or his lawyers' calculations.

The original indictment claimed that Lindh "engage[d] in a conspiracy to kill nationals of the United States, including civilians and military personnel, by committing murder." The mainstream media for the most part uncritically accepted the government's line that Lindh was an evil and dangerous fanatic who deserves every minute of the 20 years he faces. For example, The New York Times editorial on the plea claimed he admitted to "serious crimes." The Wall Street Journal's James Taranto described those offenses as "aiding terrorists and carrying explosives." Taranto's disingenuous precis is just accurate enough to be grossly unfair. A more complete account was provided by John Riley in Newsday: "Lindh pleaded guilty to supplying services to the Taliban and carrying a rifle and grenades while supplying services." That sounds more like Ernest Hemingway in the Spanish Civil War than it does like "aiding terrorists."

Riley further reported that Lindh testified on the day of the plea as follows: "I provided my services as a soldier to the Taliban last year from August to November. In the course of doing so I carried a rifle and two grenades, and I did so knowing that it was illegal." If John Walker Lindh knew before the Americans captured him in December that serving as a foot soldier in the Taliban army was illegal under U.S. law, he is a better lawyer than I am. Unless the judge probed Lindh as to the nature and extent of his knowledge of U.S. law, it doesn't take much of a cynic to assume his "knowing that it was illegal" line was a convenient little perjury, necessary for the court to accept his plea. And it is quite possible Riley's version of what Lindh said is mistaken. The only "knowledge" Lindh admitted to in the written plea agreement, as opposed to Riley's account of what he said in court, was that he "knowingly carried with him an AKM rifle and two grenades."

But whether Lindh knew it or not, his actions did indeed violate U.S. law. The reason that Lindh's foreign service, unlike Hemingway's, was technically illegal is made plain in the government's indictment:

"On July 4, 1999, President of the United States William J. Clinton declared a national emergency to deal with the threat posed by al Qaeda and the Taliban. Specifically, the President found that:

"The actions and policies of the Taliban in Afghanistan, in allowing territory under its control in Afghanistan to be used as a safe haven and base of operations for Usama bin Ladin and the Al-Qaida organization who have committed and threaten to continue to commit acts of violence against the United States and its nationals, constitute an unusual and extraordinary threat to the national security and foreign policy of the United States.

"In his Executive Order 13129, the President prohibited, among other things, the making or receiving of any contribution of funds, goods, or services to or for the benefit of the Taliban."

Lindh joined the Taliban's army in August of 2001, and a month later real terrorists attacked the Pentagon and the World Trade Center. Shortly thereafter, the U.S. government (sort of) declared war on the Taliban. John Walker Lindh never attacked the United States — the United States and its surrogate, the Northern Alliance, attacked him. What was Lindh supposed to do at that point, resign? The U.S. Army takes a dim view of private soldiers "resigning," especially in wartime. It is safe to assume the Taliban's rules on desertion were at least as strict as ours, and we have shot deserters in all of our major wars through World War II. In any event, the "crimes" of joining the Taliban and carrying weapons had already been committed when American forces arrived in Afghanistan. Resigning, even if possible, would not have expiated his technical guilt.

The government has never claimed to have eyewitness evidence that Lindh took up arms against the United States. The prosecution was always based on his own admissions, such as they are. The government has not released transcripts of its interrogations, but it is likely they are no more incriminating than interviews Lindh gave to the public press, since it is the latter that Lindh's lawyers tried unsuccessfully to exclude from evidence at trial. It is worth looking closely at what Lindh actually said, to put the significance of his guilty plea into proper perspective.

Lindh's most celebrated interview was with CNN's Robert Pelton, first aired on Dec. 21, 2001. A transcript is available at CNN's website, and it shows that, after reading "literature of the scholars," Lindh says his "heart became attached" to the Taliban; that he attended several "training camps" for non-Afghan volunteers; and that he was captured by the Northern Alliance after a 100-mile march on foot to Mazar-e-Sharif. More important than what was on the tape is what was not: evidence that Lindh was a terrorist or was hostile to the United States in any way. The tape did confirm that Lindh served the Taliban and probably carried a weapon while doing so. (He admitted that when the Northern Alliance ordered the captured Taliban to "give all of the weapons many people were hesitant, so many of them held — they hid inside of their clothes hand grenades, which is against what we had agreed upon.") So yes, the "crimes" John Walker Lindh pled guilty to did occur, if you leave aside the issue of mens rea, or guilty intent. That is all the infamous CNN tape proves. And it isn't much.

There is another, arguably more incriminating, interview that Lindh gave to Colin Soloway of Newsweek on Dec. 1 "while waiting to be taken into detention along with over a dozen other wounded men, mostly Arabs, in a large cargo truck," according to Soloway. The Newsweek article has received less media attention than the Pelton interview, perhaps because there is no tape to back it up. But recently such defenders of the prosecution as The Wall Street Journal and The New Republic have cited it as proof that Lindh was an enemy of the United States. Here is the offending passage in its entirety:

"When asked if he supported the September 11 attacks, he hesitated. 'That requires a pretty long and complicated explanation. I haven't eaten for two or three days, and my mind is not really in shape to give you a coherent answer.' When pressed, he said, 'Yes, I supported it.'"

That sounds like a damning admission: a native-born American serving in a foreign army "supported" the murder of 3,000 mostly American civilians. If true, that was big news, and a good reporter would have run with it. But Soloway dropped it. Instead of following up by asking in what ways Lindh "supported" the attacks, whether he had any foreknowledge of them, or how much he even knew about them while serving in the Taliban army, Soloway's article immediately shifts gears. It recounts at length, and in a manner sympathetic to Lindh, the circumstances of his capture and wounding at Mazar-e-Sharif.

If Soloway, who claims to have heard the remark about supporting the Sept. 11 attacks, attached so little importance to it, should we do any more? After all, Lindh asserted at the time that he was having a hard time giving "a coherent answer." When he finally gave his answer, how much had he been "pressed"? And his response, "I supported it," was in the past tense. Had he changed his mind when he received more information? And, even in the worst case, since no one claims his alleged support went beyond mere cheerleading, this "admission," if true, is nothing more than a particularly tasteless exercise of Lindh's First Amendment rights. (Incidentally, the same Colin Soloway who claims to have heard the "I supported it" remark co-authored a later article in Newsweek that attributed the government's acceptance of the guilty plea to the "growing realization . . . that the government had stoked a bonfire to fry a guppy.")

The enthusiasm in media and political circles for "throwing the book" at John Walker Lindh reveals an indifference to the facts and a strange lack of empathy. Lindh went to Pakistan, and then Afghanistan, for entirely idealistic reasons, even if few Americans share those ideals. He almost certainly joined the Taliban army without any notion he could be prosecuted for it, and he then endured hardships and tortures beyond anything experienced by contemporary American soldiers. (His account of the prisoners' uprising at Mazar-e-Sharif, and their captors' brutal response, is terrifying.) There is no public evidence that he ever committed, or intended to commit, any overt act against the United States or against American personnel. With a fair trial and capable legal representation, it is hard to imagine a jury convicting him of anything.

Why then did he plead guilty? Defenders of DOJ will argue that the government must have had evidence of real wrongdoing by Lindh, that Lindh copped a plea to avoid facing that evidence at trial, and that the government acquiesced to protect vital sources from testifying at trial. All that is possible, but there is nothing in the record beyond Lindh's plea itself to support it. Since no incriminating evidence has been leaked, and since even the government didn't claim it had more evidence when it accepted the plea, some other explanation seems likely. I suspect Lindh and his lawyers felt they couldn't get a fair trial, and that the government took unfair advantage of that fear to scare Lindh into agreeing to a sentence he was unlikely to receive at the end of a completed judicial process.

The government chose to bring the case in Alexandria, Va., where the jury pool is heavily laden with military personnel, federal employees, and their friends and families. The judge was plainly hostile to the defense, if widely reported shouting matches are any indication. As we have seen, mainstream media coverage was a relentless anti-Lindh drumbeat, from death penalty to treason to calling him "Johnny Jihad" and other epithets. And, of course, he was technically guilty of at least the "crimes" he pled to. If trial in a hostile forum was certain to result in conviction of those so-called crimes, and possibly others far more serious, taking the plea seems the reasonable thing to do.

Under the circumstances, it is hard to criticize Lindh's lawyers for what might at first look like a failure of nerve. But the government's zeal to incarcerate Lindh for 20 years is another matter. Quite simply, that sentence is vastly, grossly disproportionate to anything we know about what John Walker Lindh actually did. It calls to mind the old saw that the government can "get" anyone it wants to, if only it tries hard enough. From the outset, John Ashcroft wanted to "get" John Walker Lindh. Apparently indifferent to ethical issues of pretrial publicity, Ashcroft announced to the world when Lindh was indicted that "Americans who love their country do not dedicate themselves to killing Americans" and that the U.S. attorneys trying the case would "secure justice for the nation that John Walker Lindh betrayed" and "uphold values that he dedicated himself to destroy." The government utterly failed to back up any of those extravagant charges. No wonder Ashcroft let his subordinates give the press conference to announce the pitiful guilty plea a few months later.

For the government to put a naive and basically guiltless young man in prison for 20 years as a trophy for an ambitious politician, just because it can, crosses a moral and ethical line. If there is good cause to lock up Lindh for 20 years, the government should make it public, for it has signally failed to make such a case to date. Failing that, Judge T.S. Ellis III should reject the coercive "bargain" when he sentences Lindh on Oct. 4, and require a deal more in line with the trivial and technical infractions Lindh appears to have committed.

More likely, the principal actors now on stage are incapable of such dispassionate mercy. It will fall to a future president (or perhaps even this one, who has referred to Lindh as a "poor fellow") to see the facts more clearly than we do now and to pardon him or commute the sentence. John Walker Lindh was prosecuted because he was an American supporter of radical Islam around the time of Sept. 11, not because he committed any real crime. As long as he remains incarcerated, the United States will hold at least one political prisoner.

© Copyright 2010, Liberty Foundation

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