by John M. Curtis
(310) 204-8700

Copyright July 16, 2002
All Rights Reserved.

luffing his way to a plea bargain, tough-talking San Francisco criminal defense attorney James J. Brosnahan wrapped up "The People vs. John Walker Lindh," striking a deal that lands Taliban John a maximum of 20 years in federal prison. Pleading guilty to only two felonies—serving as a soldier for the Taliban and carrying an AKM rifle and two hand grenades—Brosnahan pulled the rug out from Court TV, which planned to cover a late-summer blockbuster. Gone was the dramatic 10-point indictment claiming that Lindh conspired to kill Americans and "provided services" for Osama bin Laden—including the suspicious death of CIA operative Johnny Michael Spahn. With the Aug. 25 trial rapidly approaching, Brosnahan cleverly folded his cards, realizing that all his inflated pretrial rhetoric about inhumane treatment probably wouldn't stick. Lucky for Lindh, the White House also didn't have the stomach for a tabloid feeding frenzy. With mid-year elections getting closer, Iraq on the backburner and the stock market still gyrating, the administration passed on more distractions.

      All governments have to pick their battles. Going through a sensational trial with the prospects exposing dirty laundry didn't appeal to White House insiders. While the DOJ touted the deal, the family of special CIA agent Spahn didn't concur. "Mike believed and I certainly believe, that people should take responsibility for their behavior," said Spahn's widow Shannon, concluding that the government shouldn't have folded so quickly. "I'm afraid we're not sending a very strong message about the seriousness of his behavior," sensing that the White House compromised its principles. Before the government's 10-point indictment, the DOJ flirted with charging Lindh with treason. Dropping 9 of 10 counts and adding one more only landed Lindh two consecutive 10-year prisons terms. In case anyone forgets, Spahn was killed shortly after interrogating Lindh, placing him dangerously close to the crime. Lindh jumped at the chance to sign a plea bargain, realizing that the other option could be worse.

      In open court, Lindh pleaded guilty without flinching. "I plead guilty sir," said the Islamic convert from Marin County, twice to U.S. District Court Judge T.S. Ellis, admitting to helping the Taliban and carrying illegal weapons. Copping to lesser charges, Lindh showed no equivocation and readily signed off. Sticking to the party line, U.S. Atty. Paul J. McNulty praised Lindh's plea bargain as "an important victory for the American people," rather than acknowledging the political pressure to put the matter to bed. It's no time for high-fives when our system treads lightly on traitors and lowers the boom on petty criminals. Spahn's death can't be taken lightly—nor can traitors whose allegiance was sworn to the most brutal regime in modern history. "This is a tough sentence," said McNulty, completing a back flip. Adding insult to injury, "This is an appropriate punishment. And this case proves that the criminal justice system can be an effective tool in combating terrorism," completing the colossal doublespeak now infecting DOJ press releases.

      Lindh's case proves that civilian courts aren't the best place to ajudicate terrorism. Judging by the outcome, other Americans may be lured into traps by enemies, knowing that traitors, like FBI agent Robert Philip Hanssen, won't pay the ultimate price. At least Hanssen got life in prison. Walker walks away doing time in federal prison close to his parents in Northern California. Let there be no mistake: Political pressure—not simply a weak case—led to Lindh's plea bargain. Going to trial was a lose-lose situation. If the DOJ rolled the dice, Lindh's defense team might have embarrassed the government, proving that the post-adolescent convert was mistreated by the U.S. Armed Forces. Holding court would have diverted public opinion away from the mid-year elections, economy and war on terror. Measuring the fallout, the White House decided Lindh's case offered few rewards and endless liabilities. Those considerations usually don't apply to military courts and tribunals. Justice isn't served when 9 of 10 original counts—already watered down from treason—are so easily jettisoned.

      Brosnahan's account of how he eventually cut his deal isn't credible. Casual conversations don't account for how both Brosnahan and the government reached a settlement. Brosnahan praises DOJ special prosecutor David N. Kelley for beginning the process that transformed an unlikely overture into a bona fide plea bargain—with CIA, Pentagon and White House approval. For nearly a month, clandestine discussions proceeded to resolve what promised to be the most distracting public spectacle since the Clinton impeachment trial. Diverting attention away from mid-term elections promised to create the kind of sideshow favoring Democrats. With control of the House and Senate hanging in the balance, the White House wouldn't allow Lindh to upend the bigger picture. From the get-go, the government's case was far stronger than the hype already used by Brosnahan during pretrial posturing. Giving his client 20 years was an offer Brosnahan couldn't refuse. Who knows, had he held out a bit longer, he might have gotten probation.

      In the end, John Walker Lindh lunged at the chance of a lighter jail term. "He was calm about it," said defense lawyer George C. Harris, stating the obvious about Lindh's eagerness to sign the plea agreement. Faced with a possible death penalty, Lindh was thrilled getting less than 20 years. While Brosnahan looks like as genius, political circumstances dictated that a sensational trial wouldn't help White House fortunes heading into November. Getting over Lindh's case gives the White House short-term gains but doesn't consider the bigger picture, especially sending the wrong message to young people thinking about selling their country down the river. Referring to the plea bargain, "It was worth the time and effort because it was worth the resolution for the American people," said McNulty, totally ignoring the people's insatiable need to see Lindh go to trial. Only Lindh and the government praised the plea bargain for their own selfish reasons. Nobody applauded McNulty other than Brosnahan and the White House, delighted that they're free to fight the next battle.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in the news. He's a consultant and expert in strategic communication. He's the author of Dodging The Bullet and Operation Charisma.

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