Trial by Fury
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Being designated an enemy combatant is, of course, exactly what happened to Yaser Hamdi, a fellow American citizen captured in Afghanistan (Brosnahan says he emerged from the same basement as Lindh). Hamdi was held in solitary confinement for two years without access to a lawyer, let alone the ability to challenge his detention. The government never indicated that it wanted to charge him, says his lawyer, Frank Dunham, and its explanation for holding him was limited to an affidavit from a military official alleging that he had "affiliated with a Taliban military unit and received weapons training."
Until recently, Lindh’s fate was widely viewed as preferable -- the benefit of being obviously American, unlike Hamdi, who was raised in Saudi Arabia and not initially identified as a U.S. citizen. But much has changed in two years. Abu Ghraib has given allegations of mistreatment like Lindh’s a greater ring of truth. And in June, the Los Angeles Times gave a further boost to his credibility when it reported that previously undisclosed government documents showed that Defense Secretary Donald Rumsfeld’s office told military intelligence officers to "take the gloves off" when interrogating Lindh. A Defense Department spokesman told Mother Jones he was not aware of the Times article, but added that Lindh "enjoyed the fruits of the American legal system to the utmost."
But that system has produced some questionable results. In late August, officials admitted that previously undisclosed evidence shot a hole through a highly publicized case involving an alleged "sleeper operational combat cell" in the Detroit area. Another case that deflated involved a sting operation in Albany, New York. Prosecutors argued in August that one of the defendants' names had turned up in a notebook in an Iraqi terrorist camp with the notation "commander," but later admitted they'd misinterpreted a word that meant "brother" or "mister." The judge noted there was "no evidence" showing the man had "any contact with any terrorist organization." A Justice Department spokesman says, "We've acknowledged that there may have been a mistake in Detroit," but overall, "our record is strong."
"The war on terror doesn’t look too black and white anymore," says Juliette Kayyem, head of the national security program at Harvard's Kennedy School of Government. "John Walker Lindh came up first, and everyone thought he was a bad guy. Now that we've seen case after case fall apart under the weight of evidence, you wonder, 'Hmm, is that story about Lindh not what I thought?'"
But the biggest rebuke to the Bush administration came last June when the Supreme Court ruled that Hamdi had the right to challenge his status as an enemy combatant. At that, the government began negotiating with Dunham for his client’s release, perhaps because it lacked evidence to prove he was ever a true threat to the United States. (Hamdi didn't give any damning TV interviews, and much of whatever the government had on him remains classified.) When he was released in September and was returned to Saudi Arabia, Hamdi had to give up his American citizenship. "It's debatable whether he comes out better or worse than Lindh," Dunham says.
Still, the Hamdi case begs the question of whether Lindh's long sentence should be reassessed -- at least in the court of public opinion. "Surely in his case we lost our sense of balance and proportion," says Mary Cheh, a specialist in constitutional law and criminal procedure at George Washington University Law School.
There's little legal recourse for Lindh, however. Judges run through a litany of questions to make sure defendants knowingly give up their rights before accepting a plea. Many people who commit similar crimes do different time. And some poor people without highly paid lawyers are waiting out sentences as long or longer than Lindh's for selling or possessing small amounts of crack. To some degree, it’s tough luck.
If there's any chance for a legal reconsideration of the plea, it might be a challenge based on the government's implied threat that, even were he acquitted, Lindh could have been named an enemy combatant. While threatening to seek a harsh punishment like the death penalty is allowed in plea negotiations, before the Supreme Court weighed in, being designated a combatant would have meant having no right to have counsel, go to court, or appeal. "If they threatened Lindh with a no-win proposition, that calls for reexamination," says Michael Greenberger, a former Justice Department official in the Clinton administration responsible for counterterrorism.
But the chances of a break for the American Taliban remain very slim. Since he never went to trial, much about him remains unknown, and since federal security rules forbid him from talking to the press, it's unclear to what degree he could rehabilitate his image. "What the hell was he doing there?" Kayyem asks. "Normal Americans don’t do that. That’s what a lot of people felt about Lindh."
"The question isn't Lindh's reputation," says Greenberger. “What's changed is that the government assessment of who is a terrorist has been shown to be very faulty. That may be something Brosnahan can play on."
If Lindh's punishment seems politically motivated, he's hardly unique. "Criminal prosecutions are a result of the social context of the time, whether it's Prohibition, spy prosecutions of the '50s, or violent gang prosecutions of the '90s," notes Michael Simons, a former prosecutor and a professor at St. John's School of Law in New York. "In hindsight, that gives rise to abuses, but that’s in hindsight."
Patrick Brown, who handled the plea for one of the Lackawanna defendants, says, "Those of us who do this work are very down." Meanwhile, Brosnahan reports that his client is as devoted to Islam as ever in the medium-security prison in Victorville, California, where he was moved in early 2003. He is allowed to see his family and lawyers, and he reads voraciously, everything from newspapers to James Joyce's The Dubliners to "ninth-century Muslim philosophers whose names I can’t pronounce," Brosnahan says. If he gets credit for good behavior, he’ll serve 17 years and emerge when he's about 38.
Brosnahan is clearly bothered by his client's long sentence, even if it was the best he thought he could achieve under the circumstances. He’s been keeping a list of other terrorism cases, and claims no one else has gotten as harsh a sentence as Lindh. He's careful not to overstate the odds of getting the case reviewed. "It's possible," he says. "We're never going to let it go."
Susan Orenstein a San Francisco-based writer, has written extensively about legal affairs and women’s issues, including an award-winning story for the Industry Standard on one of the first sexual harassment cases to surface at an Internet company during the boom.
Photo Illustration by: John Ritter
