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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.

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.

Originally posted to Jesselyn Radack on Mon Apr 23, 2007 at 03:32 AM PDT.

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Comment Preferences

  •  I'm speechless. (7+ / 0-)

    I just don't know what to think or say anymore.
    American justice? What justice? It's a travesty.

    It's all based on blind rancour, self-righteousness, and the desire to "set an example", show that "results" have been produced, and quench people's (and their) thirst for revenge. Whoever happens to fall into the mechanism, and wins the arbitrary, perverted lottery as the chosen example, gets crushed.

    It's absolutely sickening.

    "Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it." - Mark Twain

    by Donna in Rome on Mon Apr 23, 2007 at 03:49:48 AM PDT

  •  It's become a Bananna Republic system (8+ / 0-)

    and we have to keep fighting hard to take it back for the citizens of this country.

    Now, back to work! -6.00, -6.21

    by funluvn1 on Mon Apr 23, 2007 at 03:51:33 AM PDT

    •  The Lindh case Foreshadowed (3+ / 0-)

      what would occur on a much larger scale at Abu Ghraib and elsewhere.  Like an aggressive, contagious and deadly virus, this first outbreak of lawless behavior was spread by the CIA and Armyintelligence teams to the entire archipelago of American-controlled detention centers throughout the world.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 05:18:05 AM PDT

      [ Parent ]

  •  Sledgehammer Message (5+ / 0-)

    Thanks for bringing this travesty to our attention, Jessica.  If the Lindh prosecution is an effort of the Administration to send a message, I get queasy thinking about what that message is.

    I'm happy to see that the facts are now getting wider distribution.  

    Bush hijacked the US with lies about 9/11 and crashed it into Iraq, killing over 500,000 human beings.

    by Zydekos on Mon Apr 23, 2007 at 03:51:58 AM PDT

    •  It's Jesselyn (4+ / 0-)
      Recommended by:
      Ahianne, karendc, frandor55, Spathiphyllum

      (Don't worry.  Spellcheck corrects my name to "Gasoline Radar."  I'm glad to try to garner greater attention for these issues.  But I have to tell you, I wrote a whole book on this and no one would publish it.  Some good Dems finally published it for me, but self-publishing is extremely difficult.  I just sell it through the internet.  I hope to find a publishing house that is willing to publish it.  Otherwise, it's hard to market, get reviewed, and get carried in bookstores, even the so-called "alternative" ones.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 05:22:53 AM PDT

      [ Parent ]

      •  Jesselyn (2+ / 0-)
        Recommended by:
        Ahianne, Silence is Complicity

        Please accept my apologies, Jesselyn.  It was early when I wrote, fingers awake before brain.  

        Here's my pennance--Jesselyn, Jesselyn, Jesselyn, Jesselyn to the 100th.  

        And bsh to the negative 10,000.  Grrrrrr.

        Bush hijacked the US with lies about 9/11 and crashed it into Iraq, killing over 500,000 human beings.

        by Zydekos on Mon Apr 23, 2007 at 08:29:25 AM PDT

        [ Parent ]

  •  There was also the Johnny Michael Spann factor (8+ / 0-)

    The Right accused Lindh of being responsible for Spann's death in Afghanistan. Spann was held up as an example of the God-fearing Christian American who answered his country's call while Lindh was held up as an example of the America-hater who was raised by hippies in a too-permissive environment.

    As for post-9/11 hysteria, it's still very much with us and won't abate until this president leaves office.

    "Those who argue that we should somehow defer to the President are wrong."--Senator Russ Feingold

    by Dump Terry McAuliffe on Mon Apr 23, 2007 at 04:05:48 AM PDT

  •  This is not just wrong but Immoral. (3+ / 0-)

    "Though the Mills of the Gods grind slowly,Yet they grind exceeding small."

    by Owllwoman on Mon Apr 23, 2007 at 04:06:03 AM PDT

  •  i love (8+ / 0-)

    that they never fail to mention he's from marin county. how many people have their homes described by the name of the county? they could easily mention the actual town, or that it's a suburb of san francisco, but those damn marin hippie liberal radicals need to be identified; and nevermind that his dad worked in the reagan administration. in subtle ways, the media is still trying to smear him- and marin county.

    •  Trying to Pump the "Privilege" Angle (3+ / 0-)
      Recommended by:
      Turkana, Spathiphyllum, MrJersey

      Yes, and the MSM tried to exploit the idea that he grew up in this privileged environment, so why did he need to "find himself" in Afghanistan.

      And the Administration called me a "traitor," "turncoat," and "terrorist sympathizer."

      Try explaining that one to your kids . . .

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 05:30:28 AM PDT

      [ Parent ]

  •  Hopefully... (3+ / 0-)
    Recommended by:
    sobermom, missreporter, Turkana

    ...President Obama or someone similarly reasonable will quietly pardon Walker Lindh and put an end to this farce.

    •  Do you really think (2+ / 0-)
      Recommended by:
      sobermom, MrJersey

      "quietly" could be achieved?

      Best Wishes, Demena

      by Demena on Mon Apr 23, 2007 at 04:12:31 AM PDT

      [ Parent ]

      •  No Democrat could ever pardon or reduce (0+ / 0-)

        Lindh's sentence without the Republican smear machine going into overtime denouncing any such action as nothing less than traitorous.  Anyone with the temerity to currently disagree with them about the conduct of US foreign policy is accused of "giving aid and comfort to the enemy" so reducing the Lindh sentence would be trumpeted as overt treason.  Look at the Democratic reaction to the VT shooting, not one of them can bring themselves to publicly state the obvious: the failure at VT was not unavoidable, it was not really about the failure of security or mental health policies at VT, it wasn't about societal permissiveness or video games.  It was about the NRA and the gun lobby which has worked night and day to enact laws that allow homicidal psychotics to walk into a gun shop and walk out twenty minutes later with a Glock.  If Democrats cannot deal with something that obvious, granting equity to James Walker Lindh would seem problematic.  Other than people on this and other progressive sites, Lindh has no lobby working in his behalf.

        And it feels like I'm livin'in the wasteland of the free ~ Iris DeMent, 1996

        by MrJersey on Mon Apr 23, 2007 at 08:05:20 AM PDT

        [ Parent ]

    •  I Hope So (3+ / 0-)

      And hopefully they can also get the D.C. Bar charges against me dismissed, and get me off the stupid "no-fly" list!

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 05:31:21 AM PDT

      [ Parent ]

    •  I Hope You're Right (0+ / 0-)

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 07:41:46 AM PDT

      [ Parent ]

  •  Thank you (5+ / 0-)

    for continuing to post diaries here and for being a part of this community.  The opportunity to look at situations from the point of view of diarists with expertise is one of the many benefits of dKos.  

    Thank you for continuing to fight the good fight in this case in the face of serious negative personal consequences.  Standing up for what is right in the face of opposition is brave and admirable.  And I'm so sorry this farce of an "administration" has made the price so high for you personally.  I applaud your persistance and your courage.

    "For all those whose cares have been our concern, the work goes on, the cause endures, and the dream shall never die." Ted Kennedy

    by sobermom on Mon Apr 23, 2007 at 04:24:09 AM PDT

  •  Where is the funeral? (2+ / 0-)
    Recommended by:
    Ahianne, Silence is Complicity

    We mourned the loss of life on 9/11, at three locations in the United States.  But, the death of due process rights, critical to preserving a democratic republic, generated little response from most Americans who apparently believe it doesn't affect them.  But, whatever diminishes the rights of a John Walker Lindh or a Jesselyn Radack diminishes our own expectation of justice. Even if we do not ask for whom the bell tolls, it nevertheless tolls for us.

    Forewarned, forearmed; to be prepared is half the victory. ~ Cervantes

    by Deep Harm on Mon Apr 23, 2007 at 05:30:41 AM PDT

    •  You Will Be Deemed a Terrorist Sympathizer (3+ / 0-)

      for saying such things, unfortunately.  Beautifully stated, though.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 05:33:46 AM PDT

      [ Parent ]

      •  Too late (1+ / 0-)
        Recommended by:
        Silence is Complicity

        On the same day it acknowledged that I was a "whistleblower," the government revoked my security clearance.  Ironically, I had repeatedly warned, in the late 1990's, of a terrorist attack on government facilities or another disaster that would overwhelm U.S. capabilities. Clearly, government's fear of Al Qaeda is overshadowed by its fear of the truth.

        Forewarned, forearmed; to be prepared is half the victory. ~ Cervantes

        by Deep Harm on Mon Apr 23, 2007 at 06:01:46 AM PDT

        [ Parent ]

        •  A Fellow Whistleblower Punished (2+ / 0-)
          Recommended by:
          Silence is Complicity, Deep Harm

          That's right.  They certainly didn't want to hear the truth, and that's why we've been punished unmercifully.  They punish others to eclipse their own failures in the war on terrorism.  They treated Lindh as the worst of the bad because the had not caught any of the high-value detainees, including Osama bin Laden, who still remains at large today.

          The Canary in the Coalmine is available for purchase at

          by Jesselyn Radack on Mon Apr 23, 2007 at 06:23:37 AM PDT

          [ Parent ]

    •  How exactly were his rights diminished (0+ / 0-)

      He voluntarily pleaded guilty.  He could have proceeded to trial and tested his luck.  He would be entitled to appeals, etc.  He chose not to risk it.  Defendants do that all the time.  Where is the violation?

      •  As Jess explained (2+ / 0-)
        Recommended by:
        Ahianne, Silence is Complicity

        The denied him legal counsel and others, too. In my appeal of the government's retaliatory revocation of my security clearance, my attorney was barred at the courtroom door, allegedly because there would be "too many" attorneys.  There were five people in the courtoom, counting me.

        What this administration has done to justice, alone, should mandate immediate impeachment.

        Forewarned, forearmed; to be prepared is half the victory. ~ Cervantes

        by Deep Harm on Mon Apr 23, 2007 at 06:38:09 AM PDT

        [ Parent ]

        •  To the extent that he was denied counsel (0+ / 0-)

          it only occured during interrogation.  As everyone knows, the only sanction for that is preclusion of the statements made, not dismissal of the charges.  He had lawyers prior to going to trial and negotiating his plea agreement.  

          Thus, all his rights remained intact.

          •  If Statements Precluded, Then No Case (3+ / 0-)

            The right to counsel attaches during custodial interrogation.

            There are many possible sanctions for this--suppression, return of documents and notes, monetary sanctions, and even disqualification.

            He finally got after he had been interrogated.  The fact taht he had lawyers prior to going to trial does not make up for not having lawyers at the time he was interrogated, upon which interrogation the entire criminal complaint was based.

            In other words, the government eventually giving terrorism suspects counsel days, months and sometimes years after they are interrogated does not solve the problem.

            The Canary in the Coalmine is available for purchase at

            by Jesselyn Radack on Mon Apr 23, 2007 at 08:16:42 AM PDT

            [ Parent ]

            •  Whatever that may be (0+ / 0-)

              he was not entitled to the dismissal of the charges. He could have gambled on the success of his motion to exclude (and likely would have lost).  So he did what most criminal defendants do, i.e., evaluated his chances and decided to plea bargain.  I fail to see any abridgment of rights.

              Second, he was interrogated on the battlefield, in part for intellegence gathering purposes.  One does not have a right to an attorney in those circumstances.  

      •  No Counsel, Torture, Voluntariness of Plea (2+ / 0-)
        Recommended by:
        Ahianne, Silence is Complicity

        As an initial matter, a number of his constitutional rights were violated.  He was initially denied counsel and was improperly Mirandized.  Worse, he was tortured.  This unconstitutional misconduct forms the basis of the confession upon which the criminal case was based.  The main legal issue in the case was whether statements Lindh made to FBI interrogators in Afghanistan should be admissible.

        This led to the surprise plea agreement, which came about on the eve of a suppression hearing regarding the validity of his confession, which was going to bring into the open how he was treated and by whom.

        The plea agreement itself is extremely heavy-handed, unlike any that had been written before; specifically, it stated that if he ever challenges it, he can be designated an "enemy combatant," which effectively throws him into a legal black hole.

        The Canary in the Coalmine is available for purchase at

        by Jesselyn Radack on Mon Apr 23, 2007 at 08:10:05 AM PDT

        [ Parent ]

  •  Surely one can see a difference between (0+ / 0-)

    a foreigner who attacks the US and a US citizen who attacks the US.  The former is an act of war, while the latter is an act of war AND and act of ultimate betrayal.  It therefore follows that the sentences need not correspond.  

    (I am aware that Mr. Hamdi was technically also a US citizen.  But that was by virtue of an accident of birth.  He left the US when he was three months old and had no particular duty to this country).

    •  is being a citizen by accident of birth (1+ / 0-)
      Recommended by:

      the same as being pregnant by accident?  so you can be a 'little bit pregnant' in the same way you can be a 'little bit american'?  no, my friend. an american citizen is an american citizen in the same way that Saul of Tarsus was a roman citizen - once and forever.

    •  And how did Lindh attack his country? (1+ / 0-)
      Recommended by:

      As has been pointed out, he was fighting for a faction in a civil war in Afghanistan.

      Who you gonna call?

      by Ahianne on Mon Apr 23, 2007 at 08:27:45 AM PDT

      [ Parent ]

      •  A fortiorari (3+ / 0-)

        As an a fortiorari point, I'd add that because of his language deficiencies, the Taliban recruiters made Lindh join al Ansar, a non-Afghan unit.  He checked into an al Ansar training camp callled al Farooq, where there were two kinds of courses; al Qaeda training to fight civilians, and military training to fight the Northern Alliance.  Lindh did only the latter training.  When he arrived on the Taliban's front line, he performed sentry duty, which entailed mainly down-time for quiet reading.

        The Canary in the Coalmine is available for purchase at

        by Jesselyn Radack on Mon Apr 23, 2007 at 09:32:00 AM PDT

        [ Parent ]

        •  I don't see how that's an (0+ / 0-)

          "a fortiori."  But be that as it may.

          My proposition was much more general.  It is not irrational to treat a US citizen who fought against the US differently than an Australian citizen.

          Whether or not his actions constituted treason or other crimes could have been settled at trial.  He chose to forego the trial and plead guilty.  He entered the plea voluntarily.  That pretty much ends the discussion in my view.

    •  Not According to the Supreme Court (2+ / 0-)
      Recommended by:
      Ahianne, Silence is Complicity

      The "enemy combatant" designation cannot be based on the citizen/alien distinction, which raises Equal Protection problems.  Even enemy aliens within the U.S. are entitled to judicial review.

      On June 28, 2004, the Supreme Court held in Rasul v. Bush that federal courts have the jurisdiction to consider challenges to the custody of foreigners, including non-citizens.  The High Court held that nothing in any of their cases "categorically excludes alients detained in military custody [presumably for fighting against the U.S.] from the privilege of litigation in U.S. courts."  That same day, it held in Hamdi v. Rumsfeld that due process demands that a citizen held on American soil as an enemy combatant be given a meaningful opportunity to contest the factualo basis for that detention before a neutral decision-maker.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 08:30:28 AM PDT

      [ Parent ]

      •  Lindh was not designated an "enemy combatant" (0+ / 0-)

        He was brought to regular trial.  You are missing the point which is this.  It is not irrational to treat someone who is a US citizen and grew up in this country differently from someone who may have been born here, but never lived here and therefore has no attachment or allegiance to the country.

    •  If Act of War...Geneva Conventions Apply (1+ / 0-)
      Recommended by:
      Silence is Complicity

      To the extent that you feel Hamdi and Lindh committed war crimes, then they should have been treated like prisoners of war and entitled to protection as such.  

      The primary source of international humanitarian law ("the laws of war") are the Geneva Conventions.

      The Canary in the Coalmine is available for purchase at

      by Jesselyn Radack on Mon Apr 23, 2007 at 09:17:05 AM PDT

      [ Parent ]

      •  That is utter nonsense (0+ / 0-)

        A US citizen taking up arms against the US can be tried for treason and executed even if he conducted himself in accord with the laws of war.  A foreign citizen taking up arms against the US obviously cannot be tried for any acts that constituted waging lawful warfare by lawful means.

        Lindh's case has nothing whatsoever to do with Geneva Conventions.

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