Remember the famous December 2001 trophy photo of John Walker Lindh -- one of the most prominent prisoners of the Afghan war -- naked, blindfolded, and bound to a board? That was our first glimpse of American-led torture and we didn't even flinch.
He pleaded guilty to two technical charges and was sentenced to 20 years. Yaser Esam Hamdi, another U.S. citizen who was caught fighting alongside Lindh, was set scot-free. Australian David Hicks, who undertook combat training in al Qaeda-linked camps and served with the Taliban at the same time as Lindh and Hamdi, served nine months of a suspended seven-year sentence.
If one of the penalogical purposes of punishment is proportionality, the criminal justice system has failed here. But as a fortiori reasons, I'll tell you the back story, which includes blatant discovery abuse and outright torture.
Although Lindh was seriously wounded, starving, freezing and exhausted, U.S. soldiers blindfolded and handcuffed him naked, scrawled "shithead" across the blindfold, duct-taped him to a stretcher for days in an unheated and unlit shipping container, threatened him with death, and posed with him for pictures. Parts of his ordeal were captured on videotape. Sound familiar?
The Lindh case foreshadowed what would occur on a much larger scale at Abu Ghraib and elsewhere.
In the early phases of the criminal trial, the court ordered copies of all Justice Department correspondence related to Lindh's interrogation. That court order was deliberately concealed from me, even though I had written pertinent e-mails concluding that the FBI had committed an ethics violation in interrogating him without his counsel. When I went found out about the court order and went to comply, the e-mails had been purged from the file. I did not find out until this year that then-White House Counsel Alberto Gonzales was calling the shots and that he had decided not to turn anything over to Lindh's defense lawyers in the way of documents.
We're not oing to provide discovery
Gonzales said. (Quoting Eric Lichtblau, Bush's Law, p. 35.)This blatant discovery abuse is another reason to commute lindh's sentence.
The back story on the plea deal that Lindh eventually accepted is this: Lindh's attorneys dreaded a trial near the Pentagon on the first anniversary of 9/11, in the most conservative court district in the country, in a case that way fueled more by politics than merits.
Meanwhile, the Defense Department was apoplectic that its new policy on torture of captives in the war on terrorism was going to be exposed. It was a Friday and Lindh's suppression hearing (that would determine the viability of his confession--the basis of the entire case) was scheduled for Monday. Michael Chertoff, then-Assistant Attorney General for the Criminal Division and now the head of the Department of Homeland Security, who was overseeing all the Justice Department's terrorism prosecutions, had the prosecution team offer a deal: the serious charges against Lindh would be dropped and he would plead guilty to two technical charges--1) providing aid to the Taliban government in violation of President Clinton's exonomic sanctions and 2) carrying a weapon.
Chertoff, at the Defense Department's insistence, demanded that Lindh sign a statement swearing he had "not been intentionally mistreated" by his U.S. captors and waiving any furture claim of torture. This plea effectively prevented early exposure of the Administration's torture policy.
For the reasons of interrogation without counsel, discovery abuse, proportionality, and torture, Lindh's prison sentence should be commuted.