Trial by Fury

On December 2, 2001, John Walker Lindh made one of the strongest first impressions in American history. Captured in Afghanistan, there he was on CNN, scraggly, injured, occasionally wincing in pain. Though American, he seemed jarringly foreign, with his Arabic accent and heavy beard. He spoke of training camps and jihad, words that were especially potent so soon after 9/11, when Americans were still obsessively watching nightly replays of the carnage. It would be a month before Lindh was charged with any crime, but in a sense, his journey through the criminal justice system began with that TV appearance, which instantly labeled him “The American Taliban.” For much of the public, it established his guilt as a traitor -- or worse.

Seven months later, Lindh -- having eventually been granted access to the lawyer his parents had hired for him -- agreed to serve 20 years in prison for providing service to the Taliban; then he dropped into the shadows. But the climate surrounding the war on terror has changed, and his case looks different with the benefit of hindsight. He made allegations about his treatment at the hands of U.S. captors -- including being tied naked to a stretcher, blindfolded, and photographed with mocking soldiers -- that are now more chillingly believable in the wake of the prison abuse scandal at Abu Ghraib. And since his plea, the government has come under mounting scrutiny for its legal tactics -- and spotty record -- in pursuing alleged terrorists. Not only have several much-ballyhooed cases petered out, but the government’s strategy has lacked consistency. Until recently, Lindh was considered lucky in that he got to appear in court, his prominent lawyers by his side. Meanwhile, "enemy combatants," a loosely defined term applied to many deemed on the wrong side in the war on terror, were held at Guantanamo Bay or U.S. military brigs, without being charged and without access to lawyers or the courts. In June, the U.S. Supreme Court finally ruled that such prisoners couldn’t be detained indefinitely without the chance to challenge their standing.

Soon after this setback, word came that the Justice Department was willing to release Yaser Hamdi, a high-profile combatant whose case bears striking parallels to Lindh’s. Hamdi is also an American citizen captured in Afghanistan after allegedly taking up arms with the Taliban. While many details of the two cases remain classified, the seeming disparities in their outcomes are hard to ignore. Suddenly, Lindh’s sentence seems more draconian, belonging to a period when the prosecutorial zeal of John Ashcroft’s Justice Department went unchallenged.

After news broke of Hamdi’s pending release, Lindh’s lawyer, noted San Francisco attorney James Brosnahan, called on the government to revisit his plea agreement. Brosnahan won’t discuss any formal steps he might take, and his chances of ever getting Lindh’s sentence reduced are slim. Yet a fresh look at Lindh’s case says a lot about the administration of justice during times of intense national fear. "What’s interesting is being in the middle of a war psychology," Brosnahan says. "The reason I think that’s interesting is we’ll be there again."

It's hard to separate Lindh’s prosecution from the times. When the 20-year-old kid from Marin County, California, made his unforgettable entrance into American living rooms, commuters on both coasts feared that bridges would blow, and the anthrax attacks were gaining a suspenseful horror each day. The nation was plastered with flags, and a sense of betrayal further ignited rage against Lindh.

He’d long since departed from any typical teenage path, arriving in Yemen several years before 9/11 to study Arabic. He found his way to Afghanistan well before the U.S. invasion, finding common cause with the Taliban in its fight against the Northern Alliance, which he saw as a brutal enemy. In other words, his lawyers say, he intended to fight in a foreign civil war out of religious belief -- not a hatred of the United States. But a far more nefarious version of his story dominated the news, with headlines calling him a "rat" or "Johnny Jihad." Even Mitch Albom, author of the sugary Tuesdays with Morrie, penned a merciless column about the "turncoat" Lindh, who was "willing to hold a gun to an American's head." Attorney General John Ashcroft spoke of Lindh’s "allegiance to those fanatics and terrorists," and papers cited anonymous government officials who hinted that the death penalty would be sought. Weeks before he was charged, a Gallup Poll found that 70 percent of Americans thought he should be imprisoned or executed. As one former Justice Department official observes, Lindh emerged as "the second coming of Osama bin Laden."

Frank Lindh, a lawyer with Pacific Gas and Electric, had once litigated a case opposite Brosnahan, and called him on a Sunday afternoon to ask him to take his son’s case. Brosnahan, a former Iran-Contra prosecutor and senior counsel at one of San Francisco’s biggest law firms, Morrison & Foerster, has handled many politically charged cases, including the defense of Arizona religious workers charged with sheltering illegal aliens. He "loves being on the side of the damned," notes San Francisco attorney John Keker, a courtroom adversary and friend. Never was there a client as damned as Lindh. "It was a lonely case," Brosnahan says. "We always have our supporters, but outside the family and the lawyers, we didn’t have anybody." Faced with objections from some of his partners and fears about security, Brosnahan took the unusual step of keeping the firm's name off court pleadings.

Although for much of the public Lindh’s guilt was a foregone conclusion, Brosnahan and his team mounted an aggressive defense to try to prove that Lindh’s alleged confession -- both to CNN and later to the FBI -- was coerced and should be kept from court. (He faced 10 charges in all, including conspiring to kill Americans and providing service to Al Qaeda.) The defense filed a detailed narrative of Lindh’s movements beginning in November 2001, when his unit, fleeing from Northern Alliance forces, went to a fortress outside Mazar-e-Sharif under a negotiated surrender. There, a prison uprising erupted, and Lindh took refuge for seven days in a fort basement. Shot in the leg, he watched 100 men die beside him as Northern Alliance soldiers poured fuel down air ducts and set it on fire, then flooded the basement with freezing, waist-high water.