COUNTERPOINT
The flimsy case against John W. Lindh
By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"
We know from our own experience in Hawai'i that prosecutorial zeal — as in the state's now-dismissed criminal indictments of the former Bishop Estate trustees — can be dangerous.
Now, once again, we are suffering this same sort of wretched excess on a national level. This time the rough beast that has slouched into town to be born again is U.S. Attorney General John Ashcroft. It is Ashcroft who is calling the shots for the government's prosecution of John Walker Lindh, the American who was captured while serving with the Taliban forces in Afghanistan.
Lindh, long before the terrorist attacks of Sept. 11, left Marin County to pursue Islamic conversion in the Middle East. He learned to speak Arabic, and eventually wound up in Afghanistan fighting for the Taliban in what he took to be a jihad against the Northern Alliance. By any account, Lindh is a true believer, a psychological extremist who needs to substitute faith in an outside cause for the lost faith in himself.
It was while Lindh was engaged in his jihad against the Northern Alliance that Osama bin Laden and the al-Qaida launched their attacks of Sept. 11. The United States went into Afghanistan, and Lindh was among the captured Taliban forces.
Lindh was questioned on Nov. 25, 2001, by Johnny Michael Spann of the CIA and by someone identified so far only as Confidential Source #1. Spann was killed shortly after he questioned Lindh. Confidential Source #1 has so far refused to talk with defense attorneys, and the government may attempt to squash a subpoena for his testimony.
Following Lindh's interrogation, he was moved to a grassy area with others who already had been questioned. It was from there that Lindh heard the shots from the prisoner uprising that resulted in the murder of Spann. Lindh tried to run away, but was shot in the leg.
After hiding in a cellar for a few days, Lindh was recaptured and questioned by U.S. military personnel from Dec. 1 to Dec. 7. Lindh says he asked for a lawyer and doctor, but says he was denied both. So far, the government has resisted attempts by Lindh's attorneys to take testimony from the military personnel who interrogated Lindh.
On Dec. 7, Lindh was shipped to Camp Rhino, a U.S. military compound in Afghanistan. There he was kept handcuffed, blindfolded and naked in a metal shipping container. After three days, he was taken from the container, placed on a cot in a tent, and asked by an FBI special agent to sign a waiver of his right to counsel. Lindh asked to see an attorney, but was told none was available. Then — exhausted, wounded, subjected to violations of the Geneva Code, confined to a metal box — Lindh reportedly "waived" the right to counsel.
It is based solely on the unidentified FBI agent's account of Lindh's "confession" of Dec. 9 and 10 — as later interpreted by a special agent who wasn't there at the time — that Lindh was indicted on Feb. 5 for conspiring to kill U.S. nationals abroad. The agent will be called as a witness.
The government has retreated from some of the allegations made in its indictment, including that Lindh trained at al-Qaida's al-Farooq terrorist training camp. The government has acknowledged also that it has no evidence that Lindh killed or even tried to kill U.S. citizens, including Spann.
In fact, secret interrogations of Taliban forces now incarcerated in Cuba have provided what may be exculpatory evidence that the government has yet to reveal. The government acknowledges that interviews with 13 detainees contain "Brady material" — a reference to a case in which prosecution material was favorable to the defendant — but insists it cannot release the transcripts because the information is "highly sensitive."
Despite having a case dependent on a highly suspect waiver of the right to counsel, Ashcroft continues to insist that Lindh go to prison for the rest of his life.
