Adam Liptak has a piece in today's New York times, entitled appropriately enough, "John Walker Lindh's Buyer's Remorse." It's about the lack of proportionality in the punishments of "enemy combatants" John Walker Lindh (20 years), David Hicks (9 months) and Yaser Hamdi (set free), all of whom were caught doing pretty much the same thing. The back story, which Liptak could not go into in 800 words, is how all of these situations (including my own), are cases of the government going after minnows with a sledgehammer in order to "send a message" and keep its torture policy under wraps. For them, this has meant torture and deprivation of counsel. For me, this has meant getting forced out of the Justice Department, put criminal investigation, referred to the state bars in which I'm licensed, and placed on the "no-fly" list. http://www.patriotictruthteller.net
At the time, a year after the Sept. 11 attacks, it looked like John Walker Lindh had made a pretty good deal.
Mr. Lindh, a 21-year-old from Marin County, Calif., who had served as a Taliban soldier in Afghanistan, faced charges that could have sent him to prison for the rest of his life. In a plea deal, though, the government dropped its most serious accusations, including charges that Mr. Lindh had engaged in terrorism and conspired to kill Americans.
Specifically, the ugly nitty-gritty behind Lindh's surprise plea bargain deal was this: Lindh was facing trial ner the Pentagon on the first anniversary of 9/11, in the most conservative court district in the country. Meanwhile, the Defense Department was apoplectic that its new policy on torture of captives in the war on terrorism was going to be exposed.
The deal was that the serious charges against Lindh (terrorism, attempted murder, conspiracy to kill Americans, etc.) would be dropped and he would plead guilty to just two technical charges: providing aid to the Taliban government in violation of President's Clinton's economic sanctions and carrying a weapon. It seemed like a good deal a the time, considering that Ashcroft had ominously noted six months earlier, "Walker Lindh could receive multiple life sentences, six additional 10-year sentences, plus 30 years." But as Liptak points out:
Times change. Passions cool. Other cases offer telling contrasts. And Mr. Lindh now has a powerful and understandable case of buyer’s remorse.
"He was a victim of a hysterical atmosphere post-9/11," Frank R. Lindh said about his son. "Much like the country has reassessed the premises for the Iraq war, it should re-examine the premises for this sentence."
To hear Frank Lindh tell it, his son was an earnest and confused student of Islam who took up arms in a civil war between the Taliban and the Northern Alliance. "A very substantial number of people in America believe John fought Americans or committed terrorism or supported terrorism," Frank Lindh said. "That’s just not true."
As I have noted in a previous diary, two men accused of conduct similar, and sometimes, identical to Lindh's managed to make much better deals. Yaser Esam Hamdi, who was captured alongside Lindh at the same time in the same place in Afghanistan--after having his case litigated all the way up to the Supreme Court because he was such a "threat" to the United States--was set scot-free. (He had to give up his American citizenship, but was probably glad to do so after the way he was treated.) And Australian David Hicks, who admitted to more serious crimes than Lindh, was sentenced to 9 months (which specifically did NOT include his 5 years--still a long time, but a quarter of Lindh's sentence--on Guantanamo Bay). He will be free before the end of the year.
Mr. Lindh’s situation, by contrast, keeps getting worse. In February, for reasons the government will not explain, he was moved from a medium-security prison in California to the maximum-security prison in Florence, Colo., one of the toughest in the federal system. He is 26 now, and his lawyers say that even with credit for good behavior he has 13 more years to go.
Aspects of Lindh's, Hamdi's and Hicks' cases are similar, and in some cases identical. All have said that they were subjected to abusive interrogations (and, conveniently for the government, all gave up their right to sue over this.) All were denied access to lawyers who sought to represent them. The FBI, over my objections as the Justice Department's ethics advisor, interrogated Lindh without a lawyer. When "Mirandizing" him, an FBI agent improperly ad-libbed, "You have the right to an attorney, but there are no attorneys here in Afghanistan."
Jesselyn Radack, the lawyer who gave the ethics advice, left the department in 2002 over its conduct in the Lindh case. Ms. Radack has continued to follow the case, though, and she cannot find a way to harmonize the punishments meted out to the three men.
"One guy is sitting in jail for 20 years," she said. "The other guy is scot-free. And the third will serve nine months."
If you buy a house and the real estate market moves against you, that is your tough luck. The legal system takes a similar attitude toward defendants who regret the plea agreements they made. That means Mr. Lindh is out of legal options.
He has instead thrown himself on the mercy of the pardon system. Federal pardons and commutations are a matter of executive grace, decided by the president, and they can take into account any factors, including whether, with hindsight and experience, the punishment still fits the crime.