by John M. Curtis
(310) 204-8700

Copyright June 18, 2002
All Rights Reserved.

ulling out all the stops, John Walker Lindh's San Francisco attorney James Brosnahan tried to get his client's case dismissed on a technicality. Known as the "American Talib," Lindh sat stoically while his attorney exploited the First Amendment. Brosnahan argued to U.S. District Court Judge T.S. Ellis III that Lindh had a constitutional right to associate with the Taliban, when he chose to pursue his Muslim education overseas. Lindh actually converted to Islam in Marin County in1998, before heading toYemen to "learn Arabic." Brosnahan also argued that his client couldn't get a fair trial because of extraordinary advanced publicity. On both counts, Ellis found little reason to stop Lindh's trial scheduled to begin sometime in August. "The First Amendment," said Ellis, "guarantee of freedom of association is not a pass to provide terrorists with resources and services," rejecting Brosnahan's contention that his client was simply a victim of overly zealous federal prosecutors.

     Going for dismissal was Brosnahan's best shot at getting Lindh off the hook, since making incriminating statements to FBI agents after his capture last October. When Ellis rebuffed his motion for dismissal, Brosnahan then asked for a change of venue, claiming Lindh couldn't get a fair trial only 11 miles from the Pentagon. Ellis insisted that the good people of Virginia could serve as impartial jurors, though acknowledging "if I'm not able to get a fair and impartial jury, we will go somewhere else," leaving the door open for a possible change in venue. Brosnahan tried every angle, including immunity from prosecution because Lindh was a captured enemy soldier, persecuted for his Muslim faith. Lindh's attorney can't have it both ways: Claiming that Lindh was an innocent bystander swept up in war hysteria, and, at the same time, an illegal combatant, like battlefield detainees at Guantanamo Bay. "You can't charge a soldier with murder for simply being a soldier," said attorney George Harris, a member of Lindh's defense team, claiming his client was immune to prosecution.

     "Brosnahan argued that Lindh fought for the Taliban, believing he was fighting the Northern Alliance not the U.S. But Lindh's defense team also claimed that the "American Talib" fought under duress, fearing that he would be killed for refusing to fight. "The issue is whether under the statutes the government can proceed with guilt by association rather than individual culpability," Harris told the judge, again misrepresenting the fact that Lindh, knowingly or unknowingly, took up arms against the United States. Lindh faces charges of conspiring to murder Americans, aiding and abetting Bin Laden and the Taliban and using firearms during crimes of violence. Lindh's attorneys have denied that Lindh was part of Al Qaeda, though he apparently received training at one of their camps near Kabul. Despite these credentials, Brosnahan continued to characterize Lindh as a wayward youth, swept up unknowingly in Afghan's civil war.

     Rehabilitating Lindh's image doesn't jibe with published e-mails sent to his parents while pursuing his Islamic studies. "I really don't know what your big attachment (sic) to America is all about. What has America done for anybody?" wrote Lindh to his parents after spending time in Yemen. "I don't really want to see America again," attesting, if nothing else, to Lindh's bewilderment while steeped in Islamic fundamentalism. When Lindh was captured in the 18th century fortress near Mazar e Sharif, he looked, talked and acted like his turban-clad comrades. Bathed, clothed, shaved and quaffed, Lindh, looks far different than his original appearance shortly after his capture. Brosnahan contends that Lindh was abused in U.S. custody, denied access to an attorney and put on display for American troops. According to defense accounts, Lindh was blindfolded, handcuffed, bound by duck tape to a gurney, kept naked, and held in a freezing cold storage container. Brosnahan wants all of Lindh's incriminating statements stricken from the record and made inadmissible at trial.

     "Once Judge Ellis rejected Brosnahan's motion to dismiss, the focus became changing venues. Frequently citing Oklahoma bomber Timothy McVeigh, Lindh's attorneys argued that passions around D.C. remained too high since Sept. 11. to get a fair trial. National headlines don't automatically exclude jurors from rendering unbiased verdicts. Betraying your country doesn't sit lightly with most Americans, before, during or since 9/11. Already bowing out of treason, federal prosecutors simply have to show that Lindh took up arms against the U.S. at a time of war. CIA operative Michael Spahn—the first casualty in Operation Enduring Freedom—lost his life at Mazar e Sharif shortly after interrogating "American Talib" John Walker Lindh. Whether Lindh tipped off his Taliban comrades is anyone's guess. But there's no argument that Lindh voluntarily joined the Taliban, carried a loaded rifle and defended his Islamic brothers. Wounded or not, Lindh should have sweated, scraped and crawled to help his countrymen.

     "With the country watching, it's no accident that 75% of northern Virginia residents believe that Lindh is "guilty of something," and "feel the punishment should be severe." Advanced publicity doesn't automatically taint the jury pool, or, for that matter, bias judges attempting to administer justice. Wherever the trials takes place, Lindh's legal team faces an uphill battle trying to convince jurors that he was really a misguided but truly patriotic young American. Prosecutors don't have the burden of proving treason, making it easier to win the lesser charges of conspiracy to commit murder and taking up arms against the U.S. What happened in Okalahoma City bears little resemblance to the most horrific national event since Pearl Harbor. Without a dismissal, Lindh's defense team must convince a jury that he was the victim of diabolical manipulation. With Lindh's own e-mails and public remarks undermining that theory, it's going to be a tough sell.

About the Author

John M. Curtis is editor of OnlineColumnist.com and columnist for the Los Angeles Daily Journal. He's director of a Los Angeles think tank specializing in corporate consulting and strategic communication. He's author of Dodging The Bullet and Operation Charisma.

©1999-2012 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.