July 17, 2002

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Life during Wartime

After the Lindh plea: Was the government bluffing all along?

By A.C. Thompson

AFTER ALL THE chest-thumping, it was pretty surprising to see U.S. attorney general John Ashcroft cut a deal with John Walker Lindh, the so-called Marin Taliban.

In the days after Lindh was captured, President George W. Bush cast him as a member of al-Qaeda, prosecutors accused him of conspiring to kill Central Intelligence Agency operative John "Mike" Spann, and Justice Department insiders told the newspapers they were hoping to execute the kid. The 10-count indictment filed against Lindh in February carried massive potential penalties: multiple life sentences and more.

From the outside it looked like the feds had everything they needed to prevail at trial. The public climate is incredibly pro-law and order. The defendant gave damning interviews to the press and, supposedly, the CIA and Federal Bureau of Investigation. And the judge rejected most of the defense's attempts to defend Lindh.

Then suddenly, on July 15, Lindh was allowed to plead to relatively minor charges ("supplying services" to the Taliban and carrying an explosive) in exchange for a prison term of 20 years. Given the kind of jail time he was facing – and the threats of capital charges – it was a gift.

There are several ways to read this. One is that Ashcroft had an epiphany, coming to the conclusion that Lindh's youthful stupidity didn't merit execution or permanent imprisonment. Considering Ashcroft's fervor for capital punishment and the obvious P.R. value of putting Lindh away for life, another possibility seems more likely: the feds didn't really have much of a case.

Justice Department officials don't like that line of reasoning. "That's not the case at all – 20 years is not a light sentence," spokesperson Bryan Sierra says. "We stand behind everything in the original indictment, and we were prepared to bring this case to trial."

The plea bargain didn't really surprise former federal prosecutor Jerry Ladar. "When they start a prosecution, the United States is always way up in la-la land about what the charges are," Ladar says, laughing. "They say they're going to hang the guy, drag him down the middle of Main Street. Then they start to do some analysis, and inevitably the charges narrow down."

There's yet another possible reason Ashcroft accepted a deal. Had the case gone to a jury, Lindh's savvy defense lawyer, James Brosnahan of the San Francisco firm Morrison and Foerster, would've put the U.S. government on trial in a very public way. Already the lawyer was divulging embarrassing evidence that Lindh was threatened and possibly tortured, barred from speaking to his family, denied medical attention, denied legal counsel, and for two days, kept naked, blindfolded, restrained. Brosnahan was fighting to put Taliban POWs on the stand, and in all likelihood their stories about how they're being treated while incarcerated at Guantánamo Bay would not have been pretty.

Plus, the Justice Department's extensive use of secret witnesses and refusal to reveal crucial evidence to the defense may not have held up on appeal. "I'm sure there would've been huge issues regarding the government's reluctance to turn over exculpatory evidence and the way he was treated," says Scott F. Kauffman, a San Francisco defense lawyer who specializes in appeals.

In the end, a trial might have proved counterproductive for the feds, dampening public enthusiasm for the war on terrorism by showcasing the government's Constitution-trampling tactics.

Don't think, though, that the champions of due process and the Constitution won this round. Not at all. Really, what this proves is that the federal government can behave like the Taliban and get away with it.

It's a very bleak day when statements like this get faxed to you: "Amnesty International said today that although John Walker Lindh's allegations of ill-treatment by the U.S. government are no longer admissible in court, the U.S. government remains obliged under international law to treat all those in its custody humanely and to hold an impartial investigation into allegations of torture or other cruel, inhuman or degrading treatment."

Local librarians: We haven't seen the feds ... yet

Late last month the Washington Post reported that federal agents were visiting libraries across the country, checking up on the reading habits of suspected terrorists. The news immediately raised the hackles of the American Library Association, which sees the FBI's probe as a textbook case of privacy invasion. Given San Francisco's rep as a haven for radicals, we figured the FBI would've dropped by the Main Library by now – to take in the architecture, if nothing else – but apparently the G-men haven't shown up. "We've had quite a number of calls from the press, but none from the FBI, which is good," San Francisco Public Library spokesperson Marcia Schneider says.

Actually, Schneider says, should the feds decide to pay a visit, they won't find much useful info in the library's database. "When a book is returned, the whole record of the transaction is erased."