News
Criminal
Feb. 28, 2002
Every Lynch Mob Needs Its Scapegoat
Forum Column - By Steve Baughman - Given the frenzied calls to string John Walker Lindh up by his thumbs and the almost complete absence of voices questioning his prosecution, one could be forgiven for assuming that Lindh must have done something truly atrocious. Time magazine's "Person of the Year" wants him dead, and the dean of a prominent Catholic law school is clamoring for treason charges to be filed.
Forum Column
By Steve Baughman
Given the frenzied calls to string John Walker Lindh up by his thumbs and the almost complete absence of voices questioning his prosecution, one could be forgiven for assuming that Lindh must have done something truly atrocious. Time magazine's "Person of the Year" wants him dead, and the dean of a prominent Catholic law school is clamoring for treason charges to be filed. Even the law firm of Lindh's lead counsel publicly distanced itself from the case and insisted that its name not appear on defense pleadings.
A 10-count felony indictment, which includes allegations that Lindh committed "conspiracy to murder United States nationals," looms overhead, further cementing the negative perception that has infected the public imagination.
The Lindh hysteria is a classic example of the American determination never to let facts get in the way of a good temper tantrum. The perception of Lindh as having, in the attorney general's words, dedicated himself to "killing Americans," is belied by the indictment itself, which shows that Lindh expressly refused to participate in terrorist operations against the United States. Indeed, the paucity of evidence that Lindh intended to kill Americans or support terrorism has forced the government to rely heavily on the last refuge of the prosecutorial scoundrel, the ever-reliable conspirator-liability theory, with its nearly unlimited reach and its awesome power to ensnare almost any unpopular wretch within its clutches.
For the record, here is what the prosecution says Lindh did. In early 2000, he went to Yemen to study Islam and Arabic. In 2002, he received military training in Pakistan with the intention to fight in the Kashmir conflict. This training was provided by an organization certified by the secretary of state as a foreign terrorist organization. Rather than go to Kashmir, however, Lindh opted to fight in Afghanistan for the Taliban.
In about May of 2001, he traveled to Afghanistan, where he volunteered to go to the front to fight the Northern Alliance. This mission required that he undergo additional training. Because Lindh spoke none of the Afghan languages, but did speak Arabic, he was sent to an al-Qaida camp for that training. During this time, Lindh was aware that al-Qaida targeted Americans in its operations. While in training, Lindh also briefly met Osama bin Laden, who thanked him for his support of jihad.
While in training, Lindh rejected an offer to travel outside of Afghanistan to participate in operations against the United States and Israel. In either July or August of 2001, Lindh traveled to the front to fight the Northern Alliance. He continued this fight after hearing about Osama bin Laden's involvement in the Sept. 11 attacks. Lindh also remained with his fighting group after he learned that U.S. forces had become involved in supporting the Northern Alliance.
In November of 2001, Lindh's unit surrendered to the Northern Alliance. On Nov. 24, he was confined in a prison near Mazar-e Sharif. The next day, a prison riot broke out in which unspecified "Taliban detainees" attacked and killed CIA agent Johnny Spann. Lindh was wounded in the melee. Although the riot and the killing of Spann are listed as "overt acts" in the conspiracy to murder count, the pleadings contain no allegations that Lindh was one of the detainees involved in either incident.
That's the government's case.
Let's assume for a moment that these allegations are true. Where is the "conspiracy to murder U.S. nationals?" Where is the conspiracy to support terrorist organizations? Where is the evidence for John Ashcroft's "dedicated to killing Americans" description of the accused? The most striking and most ignored feature of this case is the undisputed fact that Lindh expressly rejected the offer to participate in terrorism against the United States. Lindh's purpose was to fight the Northern Alliance, that association of warlords that by all accounts murdered, raped, pillaged and terrorized Afghan civilians until the Taliban removed them in 1996 and which has resumed its ghastly practices in the post-Taliban era.
The government's case is guilt by association. Lindh received training from, and fought the Northern Alliance alongside, bad guys who wanted, among other things, to kill Americans. Unfortunately for Lindh, regardless of his own intentions, that just might be enough for a conviction under the attenuated legal theories invoked by the prosecution.
But the pressing question is not whether the prosecution can muster enough evidence to technically meet its burden and put Lindh away for life but is whether it should. And this is where the lynch mob should take pause. However odious Lindh's support for the Taliban may have been, his target was always the very, very bad guys of the Northern Alliance. And however offensive the middle finger Lindh pointed at his homeland by continuing to fight the warlords after he learned that the United States had sided with them, he was steadfast in his refusal to participate in terrorism against his homeland. And however questionable his decision to receive military training from certified terrorists, not once did he put that training to use in support of terrorism.
This is not conduct worthy of the venom that has been spat in Lindh's face by Americans of all political stripes. Why then the plethora of calls for his head on a platter?
The cynical may point to the vast store of political gold the Bush administration found in the hills of Tora Bora and the seemingly endless supply of political capital the "War on Terror" promises those crafty enough to exploit it. To be sure, as long as Lindh can be convincingly painted as the personification of terror, an aggressive prosecution is manna from heaven for an administration desperate to be seen as tough on something.
But the prosecution of Lindh has significance far beyond terrorism and the fate of this quirky young man from Marin County. This is a power grab that threatens fundamental freedoms that we as lawyers should be eager to protect. Through this transparently political prosecution, our government has sent an ominous message to all Americans: "Don't oppose us too aggressively, or we'll find a way to lock you up for a very long time, perhaps forever."
By simply pinning the terrorist label on a certain group, the government may bring its awesome power to bear on anyone who purchases that group's literature, sends a check to that group for its humanitarian operations or offers to "contribute services," whatever that means, to a member of that group. Multiple life sentences for Lindh might just be what the government needs to bring annoying dissenters a little more into line.
If we let the Lindh prosecution proceed without protest, it really will be time, as White House spokesman Ari Fleischer so bluntly put it, for Americans to start watching what they say.
Steve Baughman is a partner in the San Francisco office of Baughman & Wang, where he practices primarily immigration law.
By Steve Baughman
Given the frenzied calls to string John Walker Lindh up by his thumbs and the almost complete absence of voices questioning his prosecution, one could be forgiven for assuming that Lindh must have done something truly atrocious. Time magazine's "Person of the Year" wants him dead, and the dean of a prominent Catholic law school is clamoring for treason charges to be filed. Even the law firm of Lindh's lead counsel publicly distanced itself from the case and insisted that its name not appear on defense pleadings.
A 10-count felony indictment, which includes allegations that Lindh committed "conspiracy to murder United States nationals," looms overhead, further cementing the negative perception that has infected the public imagination.
The Lindh hysteria is a classic example of the American determination never to let facts get in the way of a good temper tantrum. The perception of Lindh as having, in the attorney general's words, dedicated himself to "killing Americans," is belied by the indictment itself, which shows that Lindh expressly refused to participate in terrorist operations against the United States. Indeed, the paucity of evidence that Lindh intended to kill Americans or support terrorism has forced the government to rely heavily on the last refuge of the prosecutorial scoundrel, the ever-reliable conspirator-liability theory, with its nearly unlimited reach and its awesome power to ensnare almost any unpopular wretch within its clutches.
For the record, here is what the prosecution says Lindh did. In early 2000, he went to Yemen to study Islam and Arabic. In 2002, he received military training in Pakistan with the intention to fight in the Kashmir conflict. This training was provided by an organization certified by the secretary of state as a foreign terrorist organization. Rather than go to Kashmir, however, Lindh opted to fight in Afghanistan for the Taliban.
In about May of 2001, he traveled to Afghanistan, where he volunteered to go to the front to fight the Northern Alliance. This mission required that he undergo additional training. Because Lindh spoke none of the Afghan languages, but did speak Arabic, he was sent to an al-Qaida camp for that training. During this time, Lindh was aware that al-Qaida targeted Americans in its operations. While in training, Lindh also briefly met Osama bin Laden, who thanked him for his support of jihad.
While in training, Lindh rejected an offer to travel outside of Afghanistan to participate in operations against the United States and Israel. In either July or August of 2001, Lindh traveled to the front to fight the Northern Alliance. He continued this fight after hearing about Osama bin Laden's involvement in the Sept. 11 attacks. Lindh also remained with his fighting group after he learned that U.S. forces had become involved in supporting the Northern Alliance.
In November of 2001, Lindh's unit surrendered to the Northern Alliance. On Nov. 24, he was confined in a prison near Mazar-e Sharif. The next day, a prison riot broke out in which unspecified "Taliban detainees" attacked and killed CIA agent Johnny Spann. Lindh was wounded in the melee. Although the riot and the killing of Spann are listed as "overt acts" in the conspiracy to murder count, the pleadings contain no allegations that Lindh was one of the detainees involved in either incident.
That's the government's case.
Let's assume for a moment that these allegations are true. Where is the "conspiracy to murder U.S. nationals?" Where is the conspiracy to support terrorist organizations? Where is the evidence for John Ashcroft's "dedicated to killing Americans" description of the accused? The most striking and most ignored feature of this case is the undisputed fact that Lindh expressly rejected the offer to participate in terrorism against the United States. Lindh's purpose was to fight the Northern Alliance, that association of warlords that by all accounts murdered, raped, pillaged and terrorized Afghan civilians until the Taliban removed them in 1996 and which has resumed its ghastly practices in the post-Taliban era.
The government's case is guilt by association. Lindh received training from, and fought the Northern Alliance alongside, bad guys who wanted, among other things, to kill Americans. Unfortunately for Lindh, regardless of his own intentions, that just might be enough for a conviction under the attenuated legal theories invoked by the prosecution.
But the pressing question is not whether the prosecution can muster enough evidence to technically meet its burden and put Lindh away for life but is whether it should. And this is where the lynch mob should take pause. However odious Lindh's support for the Taliban may have been, his target was always the very, very bad guys of the Northern Alliance. And however offensive the middle finger Lindh pointed at his homeland by continuing to fight the warlords after he learned that the United States had sided with them, he was steadfast in his refusal to participate in terrorism against his homeland. And however questionable his decision to receive military training from certified terrorists, not once did he put that training to use in support of terrorism.
This is not conduct worthy of the venom that has been spat in Lindh's face by Americans of all political stripes. Why then the plethora of calls for his head on a platter?
The cynical may point to the vast store of political gold the Bush administration found in the hills of Tora Bora and the seemingly endless supply of political capital the "War on Terror" promises those crafty enough to exploit it. To be sure, as long as Lindh can be convincingly painted as the personification of terror, an aggressive prosecution is manna from heaven for an administration desperate to be seen as tough on something.
But the prosecution of Lindh has significance far beyond terrorism and the fate of this quirky young man from Marin County. This is a power grab that threatens fundamental freedoms that we as lawyers should be eager to protect. Through this transparently political prosecution, our government has sent an ominous message to all Americans: "Don't oppose us too aggressively, or we'll find a way to lock you up for a very long time, perhaps forever."
By simply pinning the terrorist label on a certain group, the government may bring its awesome power to bear on anyone who purchases that group's literature, sends a check to that group for its humanitarian operations or offers to "contribute services," whatever that means, to a member of that group. Multiple life sentences for Lindh might just be what the government needs to bring annoying dissenters a little more into line.
If we let the Lindh prosecution proceed without protest, it really will be time, as White House spokesman Ari Fleischer so bluntly put it, for Americans to start watching what they say.
Steve Baughman is a partner in the San Francisco office of Baughman & Wang, where he practices primarily immigration law.
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