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Trial by Fury

After the revelations about prisoner abuse and flimsy terrorism cases, is it time to reconsider the fate of John Walker Lindh?

According to the defense document, Lindh talked to CNN after emerging from the basement "wounded, starved, frozen, and exhausted," while a medic worked on him and doped him up on morphine. As they interrogated him over five or six days, U.S. forces left the bullet in Lindh's leg, kept him blindfolded, gave him little food, and "taunted [him] with derogatory epithets." At one point, U.S. soldiers came into Lindh’s room and posed with him, scrawling "shithead" on his blindfold, the defense document stated. The soldiers told him he was "going to hang," with one saying he’d like to shoot him on the spot. By the time he finally sat across from an FBI agent, Lindh had been stripped naked, taped to a stretcher, and kept in a cold, windowless shipping container for days. The New Yorker quoted a Navy doctor describing Lindh as "disoriented...suffering lack of nourishment...suicide is a concern."

The government maintained that Lindh was treated well, countering in a court filing that "Lindh had to take extraordinary measures to insert himself into this war…and he should not now be heard to complain that life on the battlefield was unpleasant." They also said that Lindh was "meticulously tended to" and "ultimately returned unharmed, healthy, and strong to the country he had forsaken."

Beyond physical abuse, the defense claimed Lindh was denied his right to a lawyer. Military personnel did not read him his Miranda rights during initial interrogations -- the government claimed an exception because he was captured on a field of war. During his crucial interview with the FBI, however, the government said it did inform Lindh of his rights. But his defense team claimed he was also told, "Of course, there are no lawyers here," and he wasn’t informed his parents had hired counsel for him. Even if Lindh were told of his right against self-incrimination, his confession to the FBI should have been tossed, asserts criminal-procedure expert Yale Kamisar of the University of Michigan Law School. His treatment at the hands of the Northern Alliance and U.S. soldiers leading up to the interrogation mattered as much as anything the FBI did later. "Because of the incredible ordeal he went through, they had to do more than give the standard warnings," Kamisar says.

"We had some very interesting issues there," Brosnahan says. "It’s hard to describe how much we wanted to try this case as lawyers." Brosnahan was planning to put Lindh on the stand at the suppression hearing, and "he was not going to be what America had been led to believe." Lindh’s devotion to Islam began when he saw Malcolm X as a young teenager and was captivated by the scene of a pilgrimage to Mecca. Many profiles have focused on his obsession with hip-hop and his allegedly anti-American sentiments, but in Brosnahan's telling he was a devout, bookish kid with a "very high IQ" and a decided naivete. "He thought you read books and the world would kind of be like that," Brosnahan says. "He’s not a hater. He had no interest in fighting Americans. What he was, was a convert to Islam."

The defense won an important point when U.S. District Judge T.S. Ellis III indicated that he would likely allow them to interview witnesses at Guantanamo who might back up Lindh's version of events and undercut the terrorism charges. Otherwise, however, the defense's prospects did not look good. The government had brought the case in Alexandria, Virginia; jurors could likely be government, even Pentagon, employees. Judge Ellis, courtroom observers say, showed little sympathy for the defense's arguments. Lindh's lawyers faced an extremely high legal hurdle to prove that he hadn’t made his statements freely. If they lost, they would be left to try their hand with the 4th Circuit Court of Appeals, the most conservative in the country.

The national political climate made proceeding to trial highly risky. Patrick Brown was a defense lawyer in another high-profile terrorism case in Lackawanna, New York, in which a group of men -- initially described as a terrorist cell -- had spent time in an Al Qaeda training camp in Afghanistan. (See "Living in an Age of Fire," March/April 2003.) Brown, who says his client did not intend to train as a terrorist and left early, notes that such cases have few legal precedents, and the national mood "had a chilling effect on the ability of the client to say, 'Let’s test all this.'" Brown says he's now "embarrassed to be associated with" the Lackawanna case because "we basically buckled." His client took a plea of eight years for providing material support to Al Qaeda.

When Lindh's team conducted a survey to gauge the potential pool of jurors, "I'd never seen that level of animosity," Brosnahan says. His attorneys would have to explain why he ended up at a training camp that was associated with bin Laden, and later joined Taliban fighters, and carried grenades. "It’s hard to imagine an innocent explanation for that," says Katherine Darmer, a professor at Chapman University School of Law who's written about the Lindh case. Brosnahan says Lindh "felt he was defending Islam" and went to a military -- not terrorist -- training camp. He joined the Taliban army, and was never a member of Al Qaeda. But at the time, distinctions about the enemy were barely on the radar. "In the eyes of many U.S. soldiers and lower-ranking intelligence agents, this was all one war," notes Doug Cassel, director of the Center for International Human Rights at Northwestern University Law School. "Taliban, Al Qaeda, what’s the difference? Well, the difference was enormous."

On the eve of what promised to be a dramatic showdown in court on the admissibility of Lindh's statements, Brosnahan says a government lawyer approached him about a deal. The two sides negotiated in marathon sessions until Brosnahan visited Lindh in jail on a Sunday after midnight to finalize the agreement. While reports at the time said even Judge Ellis was surprised that a deal had been struck, both sides had ample motivation. Lindh faced three counts each calling for a life sentence. Brosnahan had been holding out hope that the jury would include one or two parents of teenagers who would understand the trouble they can get into, but "there are realities. There would be a jury called in that district, and the judge would be the judge." And, Brosnahan says, the defense was told that even if Lindh won an acquittal, he could still be named an enemy combatant and held indefinitely. For the government’s part, striking a deal would mean that the defense wouldn't interview witnesses at Guantanamo, nor would it introduce potentially embarrassing testimony about Lindh’s treatment at the hands of U.S. interrogators. (The U.S. Attorney who handled the case declined to speak to Mother Jones.)

At the time, a 20-year sentence for the American Taliban seemed almost cushy. "Because the administration had puffed up this case so much when it brought it, it was forced to seek a very harsh sentence," says terrorism expert David Cole, a professor at Georgetown University Law Center. The terrorism charges were dropped, and Lindh pled guilty to providing services to the Taliban and possessing explosives while committing that felony. "Our goal, frankly, was to give him some kind of future in the chaos," a chance at release while he was still in his 30s, Brosnahan told Newsweek at the time. Lindh had to stipulate that he was not "intentionally" mistreated by the military -- language that, through the lens of Abu Ghraib, takes on new significance. The plea also contained the unusual provision that, for the rest of his life, the government could summarily designate Lindh an enemy combatant if it found he engaged in terrorism-related activities.

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