© Harpers
1. In a recent speech at Northwestern University in Chicago, Attorney General Eric Holder cited the John Walker Lindh prosecution as an important accomplishment for the Justice Department in battling terrorism. Lindh, a young man described by President Bush as a "Marin County hot-tubber," was vilified by the Justice Department after his capture in late 2001 as the "American Taliban." Is there something about the Lindh case that Holder doesn't know?
I'm surprised Holder brought up Lindh's case, much less hailed the Justice Department's anemic performance as an achievement. Lindh, our first capture in the Afghanistan war and one of its most prominent prisoners, became a symbolic surrogate for bin Laden in an extremely high-profile terrorism case that ultimately imploded.
Holder is too smart not to "know," or to remember, the trophy photos of Lindh - naked, blindfolded, tied up, and bound to a board with duct tape - that circulated worldwide. That was our first glimpse of American-sponsored torture, and we didn't even flinch. Lindh's treatment was a harbinger of what would occur on a much larger scale at the American-run Abu Ghraib prison in Iraq and elsewhere.
But Holder may be unaware that the criminal case collapsed in large part due to the government's mistreatment of Lindh and its mishandling of the case. I was the Justice Department legal-ethics adviser who warned not to interrogate Lindh for purposes of a U.S. criminal case without his counsel present. I gave that advice after the Department had been told, unambiguously, that Lindh was represented by an attorney. My advice was ignored. I then advised that the tainted interrogation should not be used against him in a criminal prosecution. Again my advice was disregarded, and it later disappeared from the office file while the Justice Department was under a court order to produce it.
The main legal issue in the criminal case against Lindh turned on whether the confession he made to FBI interrogators in Afghanistan should be admissible at trial. My emails were central to that question. They documented that he was represented by counsel and could not be interrogated without his lawyer, and that the FBI had committed an ethics violation in doing so, the fruits of which could not be used against him in a prosecution.
Lindh faced the possibility of three life sentences, plus an additional ninety years in prison. Holder has conveniently "forgotten" that the case ended suddenly on the day the suppression hearing was due to begin, which would have determined the admissibility of Lindh's interrogation. Lindh ended up pleading guilty to two relatively minor regulatory infractions, one of which was not even related to terrorism.
2. So the Justice Department misled the district-court judge, T. S. Ellis III, by failing to disclose the advice you gave, which would have confirmed that Main Justice knew Lindh had a lawyer and had advised FBI agents that they were ethics-bound, for the purposes of building a criminal case, not to interview him without his lawyer present. Did the Justice Department ever investigate who purged the relevant documents from the file?
Despite my lawyer's request in June 2002 and a request by Senator Edward M. Kennedy in March 2003, the Justice Department did not investigate who purged the file. My attorney provided the Justice Department's Inspector General with information about this.
Sometimes an IG investigation focuses on troubling facts that a whistleblower has disclosed; other times the IG starts investigating the whistleblower instead - and that's what happened to me. After seven months of a pretextual investigation, the IG told my attorney that he had "looked into" my whistleblower allegations, and that he was "not going to pursue it." Obviously the IG didn't look very deeply. He didn't even bother to ask me, the whistleblower, what had happened. Not bothering to interview the complainant shows where the IG's priorities lay. Moreover, Justice never responded to the congressional request.
Instead, in 2003, the IG placed me under criminal investigation (for what, I was never told), referred me to the state bars in which I'm licensed as an attorney (based on a secret report to which I did not have access), and put me on the No Fly List. Although the criminal case was dropped a year later without charges ever being filed, and although the Maryland bar quickly dismissed the charges as unfounded, the D.C. bar referral against me is still pending after more than eight years. Meanwhile, even though the Justice Department's Office of Professional Responsibility concluded that John Yoo and federal judge Jay Bybee, who wrote the infamous torture memos, had engaged in serious professional misconduct, it never referred their cases to bar associations. But it did bring charges against me for dispensing correct ethics advice, the existence of which later proved embarrassing to the Department. These two cases say a lot about the Justice Department's attitude toward professional ethics.
3. What role did the media play in the railroading of Lindh?
Lindh's capture occurred shortly after 9/11, and the resulting attention was nothing short of mass hysteria, with both the Justice Department and the public at large clamoring for his death.
Newsweek first broke the story, dubbing Lindh the "American Taliban." Colin Soloway of Newsweek interviewed Lindh on December 1, while he was waiting to be taken into military custody, even though Lindh was barely alive, seriously wounded, disoriented, and suffering from dehydration and hypothermia. Then there was the even more famous televised interview by CNN freelancer Robert Young Pelton, who interviewed Lindh at a naval hospital about a week later. Lindh was delirious and in critical condition, but he told Pelton multiple times not to film him. Lindh had a bullet in his thigh, shrapnel wounds, and was sedated. Pelton filmed him despite his protestations, and that interview was televised around the world.
People in political and media circles demonized Lindh. The case was constantly in the news, and every journalist in print, radio, and television seemed to be reading off the Justice Department's script as the government released a steady stream of false, misleading, and inflammatory propaganda to the media. Bush, Cheney, Rumsfeld, Powell, and Senators Clinton and McCain made prejudicial statements that Lindh was an Al Qaeda fighter, had fired his weapon, had attended a terrorist training camp, and had foreknowledge of 9/11 - even though the government, from the first day of Lindh's capture, possessed facts to the contrary. The media acted largely as a stenographer, rather than doing any independent investigation.
Shortly before Lindh's suppression hearing (which would determine whether his interrogation - the one I advised against - could be used against him), I heard a radio broadcast stating that the Justice Department had "never" taken the position that Lindh was entitled to counsel, a sentiment that I learned had been expressed repeatedly during the preceding weeks and months. I knew this statement was untrue. It also indicated to me that the Justice Department had not turned over my emails to the court pursuant to the discovery order. I did not believe the department would have the temerity to make public statements contradicted by its own court filings if the emails had indeed been provided. This led me to blow the whistle.
4. Who had the most to lose had the facts about document destruction come out?
Clearly the government. It would have revealed prosecutorial misconduct that would probably have led the government to drop the case. More significantly, it would have revealed the government's torture program during its embryonic stages. After 9/11, John Yoo worked in the Department's Office of Legal Counsel, which used to be considered the "conscience of the Justice Department." That office takes up the most significant and sensitive topics facing the federal government. As the government's ultimate legal adviser, its memoranda have the effect of binding legal authority on the government. Yoo drafted a set of secret legal opinions that later became known as the "torture memos." They advised the president, CIA, and defense department on the use of mental and physical torture techniques - such as waterboarding - and stated that such acts might be legally permissible under an expansive interpretation of presidential authority during the "War on Terror."
In 2008, the book Bush's Law, by Pulitzer Prize - winning journalist Eric Lichtblau, revealed that the White House knew that providing documents to Lindh's defense team would produce damning details about his custody and the nascent torture program. The head of the Justice Department's Criminal Division, Michael Chertoff, got word through back channels that White House officials - who are supposed to be insulated from the Justice Department - were meeting to discuss what to do about Lindh and the discovery issue. The Justice Department was ticked off that it was being cut out of the loop, but White House Counsel Alberto Gonzales (long before he became Attorney General) made clear that the White House was calling the shots. Gonzales, in his capacity as White House Counsel, had decided not to turn over any documents to Lindh's defense lawyers. "We're not going to provide discovery," Gonzales said - as if discovery were optional and not a legal obligation, and as if it were the White House's call to make. So the decision to defy the court's orders was actually made in the White House, and the evasion was completely deliberate.
Because of the plea agreement, however, it wasn't until the Abu Ghraib scandal in May 2004 that the torture memos started leaking out - the start of a steady drumbeat of horror that became one of the biggest scandals of the Bush Administration.
"Traitor" is meant as a double entendre. Lindh was demonized as the traitor incarnate, but he turned out to be an inconsequential figure. The Bush Administration seized upon him because it had failed to find any of the key leaders - Osama bin Laden, Ayman al-Zawahiri, or Mullah Omar. I started out as a well-regarded Justice Department ethics attorney, but was transmogrified into a "traitor," "turncoat," and "terrorist sympathizer" (in the words of anonymous government officials) simply for doing my job and dispensing ethics advice. Another layer to the title is that whistleblowers are often disparaged as "snitches" or "traitors" for reporting fraud, waste, abuse, and illegality. But in the end, the Bush Administration was the real traitor. It took illegal, unethical, and unconstitutional actions - contrary to American democratic principles and values, and the rule of law - to achieve dubious ends. And unfortunately some of those unlawful practices continue today under the Obama Administration, pursued in the name of national security and fighting terrorism.
6. If the Justice Department in fact used deceit and misrepresentation to secure a plea bargain with Lindh that resulted in a twenty-year jail sentence, wouldn't it be appropriate to overturn that outcome?
Yes, it would be appropriate to overturn the outcome in view of the Department's misconduct in the case; however, that will not happen in today's highly politicized, fear-based climate. I don't think Obama or his successor will pardon Lindh - that would require serious self-examination of the government's overzealous reaction to 9/11 and massive expansion of executive-branch power. However, the president could at least grant the Lindh family's petition for clemency by commuting his sentence to the decade he has already served. What stands in the way is the Office of the Pardons Attorney, a Justice Department fiefdom that steadfastly rejects the idea that the department ever works an injustice or does anything wrong, even in the face of overwhelming evidence to the contrary.
Lindh's case for freedom is bolstered by the fact that another American captured fighting alongside him, Yaser Hamdi, was freed after the government litigated his case all the way to the Supreme Court and lost. Another young adventurer like Lindh, Australian David Hicks, was returned to Australia and is now also free. And we learned two months ago that the United States is secretly releasing top Taliban prisoners in connection with efforts to move toward a negotiated settlement in Afghanistan. Lindh was at best a very low-level figure with the Taliban. But he made a convenient scapegoat for the Bush team. If proportionality is one of the penological purposes of punishment, this case exemplifies how badly the United States has failed.
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