The Lindh Turkey Shoot
by Jennifer Van Bergen
2 June 2002
"Walker, himself," said President Bush, "is being well treated on a ship of ours. He is - I suspect he's finding his berth a little better than it was when he was placed in the prison in Afghanistan."
Everyone knows the story. John Walker Lindh was captured in Afghanistan, fighting with the Taliban. John Ashcroft accused him of "killing Americans."
What exactly IS Lindh guilty of, if anything? The answer: the government has a very weak case against him, perhaps no case at all.
A photograph of John Walker Lindh, taken while he was in that berth, shows a thin, blindfolded, naked man strapped into a canvas WWII army stretcher within a metal container, his hands bound with plastic cuffs at the wrist and doubly tied with cloth binding.
If this was better than the prison, the prison must have been rancid. Conditions were surely in violation of Geneva Convention requirements, since Lindh's berth certainly was. (Tied-up naked and blindfolded in a metal box is not humane, a primary requirement of the Convention.)
The cruel humor with which Bush regarded Lindh's treatment is perhaps a small clue to the government's real approach to this case. They view Lindh with the same relish a bad hunter shows in a turkey shoot. Here's someone, at last -- an easy target upon whom to vent their frustrated wrath at not having shot the wolf! Or perhaps at not having been able to heard the sheep into the barn?
If U.S. v. Lindh is a turkey shoot, of course Lindh is the turkey. He certainly isn't the wolf. Or the goose who laid the golden egg. Aschroft should be embarrassed to try him. It is a sure bet that if the government had bin Laden, they would not even bother with Lindh.
Even before the FBI questioned Lindh, DOJ prosecutors were expressing doubts about the strength of their case against him. In an internal email obtained by Newsweek, one DOJ lawyer wrote to another: "At present we have no knowledge that he did anything other than join the Taliban."
This, of course, may be bad enough, since the Taliban is a designated terrorist organization and it is illegal to render them services1 - although it was never indictable before. Unocal got away with it. So did the Center for Afghan Studies at University of Nebraska at Omaha. So did several individuals. They all "rendered services" for the Taliban and none of them were prosecuted.
But then, Unocal wasn't some guy with rags on his back who had chosen to follow an unpopular religion or join an unpopular cause. Unocal is a successful, wealthy, rapacious corporation that is known for its human rights violations abroad. Just what we admire.
Not only that, but had Unocal's business deal with the Taliban gone through, it would have benefitted those in power in this country. Not the same at all as Lindh. Lindh actually believed he was fighting for an oppressed people.
Of course it was okay for Unocal to wine and dine the terrorist Taliban in Texas with utter impunity, while Lindh, nearly dying at the hands of his own paterfamilias in a bombed-out basement in Afghanistan, is made to carry the full burden of our own past sins because he chose to fight with the now-out-of-favor Taliban against the now-in-favor Northern Alliance.
Lindh is not only accused of joining the Taliban, of course. He is accused of fighting with the Taliban against Americans. Isn't that treason? The U.S. Constitution requires two overt acts of levying war against America or of adhering to its enemies to prove treason.
The DOJ, however, does not accuse Lindh of treason.
Marci Hamilton, a law professor at Benjamin N. Cardozo School of Law, wonders in a recent article whether the government is reluctant to prosecute Lindh for treason - being "soft on Walker," she says -- because the Administration is "keenly attuned to religious life" and is therefore reluctant to go "for a stronger penalty for Walker's traitorous activities."
(This kind of puts the cart before the horse, does it not? How exactly does Hamilton know that Lindh did anything traitorous?)
One need only look at the religious preferences of the thousands of Muslims held on nothing more than visa violations since 9/11 to grasp the magnitude of the error in Hamilton's thinking about the Administration being soft on Lindh. One need only think about Ashcroft covering the bare breasts of the statute of Justice. Or his invasion of attorney/client communications. Or his indictment of Lynne Stewart. Or his statement that anyone who dares questions his measures, aides the enemy.
This man would hardly be reluctant to prosecute anyone for something as little as a difference of opinion.
No. The reason the DOJ is not prosecuting Lindh for treason is not because they are soft on him for his religious choices. It is because they know that he did not commit it. All he did, by their own admission, was join in a fight in a foreign country against its own insurgents.
A good example of how Lindh gets dressed in wolf's garb is a comment made by Douglas W. Kmiec, dean of the Catholic University of America, Columbus School of Law and fomer constitutional legal counsel to former presidents Reagan and Bush. "Surely two witnesses ... can be found" says Kmiec, "among the hundreds of detainees" who will testify to Lindh's treason.
Interesting legal standard: presume guilt first (of treason, no less!); find witnesses later.
Relying on the indictment as proof, Kmiec refers to Lindh's "embrace of training." Pulling words directly off the indictment, Kmiec claims Lindh learned how to use "'shoulder weapons, pistols, and rocket propelled grenades'" and refers to his "desire to be assigned to the front of the war against the United States." Kmiec declares "If that is not enough to make the case, what is?"
Trouble is, Kmiec is not very careful with his facts. The indictment -- which, in any case, is not proof of anything -- does not accuse Lindh of desiring to be assigned to the front of the war against the United States.
In fact, the indictment states that when Lindh was asked whether he was interested in "traveling outside Afghanistan to conduct operations against the United States and Israel," he "declined in favor of going to the front lines to fight."
In other words, as the www.freejohnwalker.net website points out, "far from dedicating himself to 'killing Americans,' as the Attorney General has alleged, Walker expressly refused the offer to participate in terrorist operations against the United States," and "requested that he be assigned to the front lines in Afghanistan to fight against the warlords that comprise the Northern Alliance."
The site continues: "Walker began his fight against the warlords before the United States took their side."
In other words, Lindh did not ever intend to fight against Americans. He intended only to fight the Northern Alliance.
Contrast Kmiec's and Hamilton's statements about Lindh with that of Robert Young Pelton, the journalist who interviewed Lindh before he was even in FBI custody. Referring to the terrorism charges, Pelton says that Lindh "was not part of that world ... He wanted to fight with the Taliban to create an Islamic state. None of those issues tie into what happened on September 11th."
Indeed, in the account Lindh gave to Pelton, Lindh stated that the uprising at Konduz, at which CIA officer Michael Spann was killed and where Lindh was captured, was "a mistake by a handful of people," and was "against [the principles of] Islam," since the group he was with had agreed to surrender and it is "a sin to break a contract, especially in a military situation."
If Lindh did not intend to fight against Americans, if he had abandoned the religions of the West and adopted Muslim beliefs, he has committed no other crime than, as the DOJ lawyer said, having joined the Taliban.
Whether that is a crime depends upon whether it is constitutional for the Department of State to designate foreign groups as terrorist organizations, which one federal court now declares a clear violation of due process.
It may not have been wise for Lindh to go to a foreign country and fight in an internal civil war there, but if his rendering services to the Taliban is considered a crime, there are others who were involved at much higher levels than Lindh who should be prosecuted.
In the meantime, Bush and his minions should grow up, stop coming down on little guys like Lindh, and go find someone their own size to fight.