• Count 1: Conspiracy to Murder U.S. Nationals.
• Counts 2 & 4: Conspiracy to Provide Material Support & Resources to Foreign Terrorist Organizations.
• Counts 3 & 5: Providing Material Support & Resources to Foreign Terrorist Organizations.
• Count 6: Conspiracy to Contribute Services to al Qaeda.
• Count 7: Contributing Services to al Qaeda.
• Count 8: Conspiracy to Supply Services to the Taliban.
• Count 9: Supplying Services to the Taliban.
• Count 10: Using and Carrying Firearms and Destructive Devices During Crimes of Violence.

John Walker Lindh plead guilty to Count 9 of the Indictment - supplying services to the Taliban - and carrying an explosive during the commission of a felony (count 10). The maximum penalty for Count 9 is 10 years imprisonment, a fine of $250,000, 3 years of supervised release, and a $100 special assessment. The penalty for Count 10 is ten years imprisonment (served consecutive to the penalty for Count 9), a fine of $250,000, 3 years of supervised release, and a $100 special assessment. Following the sentencing guidelines Lindh was given a sentence of 292 - 365 months for Count 9, ten years for Count 10, no fine, and an assessment of $100 per count. In addition Lindh:

• Waived the right to appeal the sentence.
• Agreed to cooperate fully, truthfully, and completely, to provide all information he knows, to voluntarily submit to polygraph examinations, and to testify fully, truthfully, and completely at any grand juries, trials, or other proceedings.
• Assigned to the United States any profits or proceeds he might be entitled to receive in connection with any publication relating to his illegal conduct.
• Withdrew all claims of mistreatment by the U.S. military.
• Acknowledged that he plead guilty freely and voluntarily.

• Dismissed the remaining counts, and agreed to no further criminal prosecution for conduct specified in his Indictment.
• Agreed not to use any truthful information provided pursuant to the plea agreement against Lindh.
• Agreed to endeavor to treat Lindh similarly to other inmates at a similar classification, in spite of 'special administrative measures' applicable to national security cases.
• Did not object to Lindh's request that the Court recommend that he be assigned to a prison near his parents' residence.
• Agreed to forego any right to treat Lindh as an unlawful enemy combatant for any conduct alleged in the Indictment.
• Recommended that Lindh be given credit for all time that he was in military custody.

THE OPED:

With this plea both sides elected to hedge their bets and settle for less than what they wanted while leaving unanswered a number of novel constitutional questions. Lindh's legal position was that he was not Mirandized, that he was not afforded access to a lawyer even though he asked for one, and that his statements (the bulk of the evidence against him) were obtained under extremely coercive conditions and should be excluded (he was captured after being wounded in the prison uprising and then starving after several days holed out in the basement of the Qala-i-Jangh prison near Mazaer-e Sharif as the Northern Alliance troops threw grenades, poured boiling gasoline, and then freezing water into the basement in an effort to kill the prisoners hiding down there, then duct-taped naked to a metal container by U.S. troops, with his wounds not treated for two days, etc.) Lindh faced the possibility of a life sentence, and of being treated as an unlawful combatant. He also could have faced a jury that would have been heavily influenced by 9/11, and inclined to treat an enemy very harshly. U.S. District Judge T.S.Ellis III had ruled against Lindh and for the government in all 7 of his motions to dismiss. The government's position was that Miranda does not apply to military fact-finding in a war zone, that Lindh voluntarily waived his right to a lawyer, that his confession was not coerced, and that he had been treated well by the military. The government settled rather than risk Judge Ellis being reversed on appeal, and to leave unanswered (rather than take the risk of an unfavorable decision which might effect other cases) the questions of if U.S. citizens caught abroad fighting with enemy forces enjoy the same rights as criminal defendants in the U.S. and if the President alone has the authority to decide which captured enemy soldiers are unlawful combatants.
Despite the revulsion occasioned by Lindh's 'going over to the enemy' that has prompted many to reflexively call for the death penalty for treason, the government's indictment that Lindh attempted to murder U.S. nationals and was involved in the murder of Johnny Micheal Spann did not appear to have much evidence, and overall this plea agreement is a just result.

A.G. Ashcroft did not distinguish himself in this episode. First he accused Lindh of dedicating himself to killing Americans, saying, ".. the filing of criminal charges was compelled by the inescapable fact of September the 11th. We can not overlook attacks on America when they come from United States citizens." Then including in the indictment "In or about June or July 2001 Lindh met personally with Bin Laden, who thanked him and other trainees for taking part in jihad." and "In or about June or July 2001, Lindh swore allegiance to jihad." seemed to be gratuitous attempts to poison the jury pool.

© SNi 07/25/02