Obama, Torture and John Walker Lindh

On March 15, the Justice Department made an announcement that was barely reported in the media.   The DOJ decided not to renew the Special Administrative Measures (SAM) that have been imposed on John Walker Lindh since his conviction and incarceration in 2002.   These rules limit visitors to family and lawyers who are forbidden to relate the content of their conversations to the media.  The expressed purpose of these rules is to keep inmates from disclosing information that is harmful to the security of the United States.  Their practical effect has been to silence Lindh.  Federal regulations for SAM require the Bureau of Prisons to obtain an annual re-certification by the director of a national intelligence agency that the inmate continues to be a security threat.  Lindh was certified seven times by the Bush administration.  The Obama DOJ has allowed the last certification to lapse.

John Walker Lindh is now 28 years old.  He resides in a special unit for persons convicted of offenses related to the “War on Terror” in the federal penitentiary in Terra Haute, Indiana.   He was twenty years old when he was captured with Taliban fighters by an Afghan warlord in the first month of the war.    The warlord, General Dostum, turned him over to the U.S. military for interrogation.  He became the first detainee: #001.  His capture occurred so early in the war that Donald Rumsfield had not yet dispatched the first torture team to Guantanamo, and Cheney had not yet maneuvered Bush into stripping prisoners of the protections of the Geneva conventions.

Lindh was spared the legal limbo and draconian regimen of the Guantanamo prison.  This particular calamity could not be visited upon him because he had, in principle, the constitutional and legal rights of a U.S. citizen.  Instead, he was transported to northern Virginia where he was indicted, tried, and sentenced to twenty years in prison.

Before he was silenced by the Justice Department’s invocations of Special Administrative Measures, Lindh had a brief moment in public view.  He had his 15 minutes of infamy.  American political leaders denounced him as a traitor.   The Attorney-General, John Ashcroft, anointed him the “American Taliban”, a label that was bound to reduce the likelihood that he would receive a fair trial.  He was displayed in one of starkest photographic images of the Afghanistan war as a naked, haggard, filthy, emaciated, terrified man with the crazed, harrowed glare of a homeless schizophrenic man from the streets of an American city.  The chorus of denunciations and this iconic image propagated the idea that Lindh was a religious extremist, a fanatical convert to Islam who had joined al Queda to make war on the infidels, on the people of the United States.

The reality was quite different. In essence, Lindh was a wayward late adolescent from California who had been traveling for several years in the Muslim world learning Arabic and studying the Quran. He eventually migrated to a madrassa in Pakistan where he came under the sway of fundamentalist teachers and recruiters for the jihad in Afghanistan.  He had the bad judgment to volunteer to fight for the Taliban against a coalition of warlords in the naïve belief that he would be defending an Islamic republic.

Lindh also had the colossally bad luck of arriving on the northern front on September 6, 2001. Five days later al Queda struck and Lindh was stuck. He was shocked by the attack and rejected the legitimacy of attacking civilians. In the isolated mountains of northern Afghanistan, he couldn’t surrender to the opposing Northern Alliance because its leader, General Dostum, had the nasty habit of lashing prisoners to the treads of his tanks.   And he would have been executed by his own side if he tried to leave the front while the Taliban was under attack by U.S. Special Forces and their Afghan allies.

Within weeks, the Taliban were in retreat and Lindh was captured along with five hundred other fighters.  All told, Lindh had spent about six weeks in Afghanistan as a jihadist volunteer. He attended a lecture by Osama bin Ladin during training; he did not join al Queda.  He rejected an offer to become a martyr in a suicide bombing.  He never fired a shot in combat.

Back in the United States, Lindh was handed a ten count indictment, which included a charge of conspiracy to murder United States citizens.  He faced a possible sentence of forty years.  However, Lindh never had a trial.  Just before pre-trial hearings on defense motions to suppress evidence, the government offered a plea bargain which it pressured Lindh to accept.

The indictment was reduced to a single charge of violating a 1998 Clinton executive order prohibiting material assistance to the Taliban. The prison sentence was reduced to twenty years.   As in all plea bargains, there was a provision for finality of the legal process. Lindh renounced his right to appeal.  The defense accepted the deal because they figured that conviction was inevitable in the post 9/11 anti-Muslim hysteria.

The plight of someone serving two decades in prison for actions which, however strange and unpopular, were neither heinous nor villainous should be of concern to anyone addressing the many small injustices that Bush and his coterie have dished out.  It is possible that lifting the ban on Lindh’s communication will be a prelude to a presidential commutation of sentence before the end of Obama’s term.  Lindh expressed contrition at his trial and has reportedly handled himself well in prison.  Clemency as a matter of compassion and equity are entirely in order.

However, that should not be the end of the matter. Lindh’s case has broader political significance.  It should be viewed in the context of the Obama administration’s objective of restoring constitutional government and the rule of law, closing the Guantanamo concentration camp, bringing torture and Bush’s other serious malfeasances to light, and restoring professional integrity in the Justice Department and other departments of the government.

Questions hang over the Bush administration’s handling of Lindh’s prosecution.  Why did the government need to keep a winnable case out of the courtroom?  Why did the prosecutors force Lindh into a plea bargain when they had incriminating FBI interrogations of Lindh?  And why did they need to silence Lindh in prison with Special Administrative Measures?  The proposition that this teen aged pilgrim possessed information which made him a security threat for seven years is laughable.

Lindh was kept from telling his story in the courtroom and from his prison cell for political reasons.  He was the first detainee of the Afghanistan war. He was probably the first detainee to be tortured. He was also the Bush administration’s first major cover-up.

There was a lot to cover-up. Lindh’s treatment by the US military in Afghanistan had been atrocious and illegal.  It was inhumane, abusive, degrading and in clear violation of U.S. law and the Geneva conventions.

Lindh was handed over to the U.S. military in a severely debilitated state.  He had survived a horrendous week long ordeal in the cellar of a fort where he was trapped with 500 prisoners by General Dostum.  He had been traumatized by having to dodge grenades which Dostum’s troops threw into the cellar.  He had a bullet wound in his leg and shrapnel elsewhere in his body.  There was no food.  Water was befouled with excrement, blood, fuel oil, and rotting body parts.  He was exposed to freezing water and frigid mountain air.  More than four hundred prisoners died in the cellar that week.  When Lindh emerged along with 80 other survivors, he was ill and in pain.

At that point, Lindh was taken to Camp Rhino, a U.S. base near Kandahar.   The conditions of his confinement were abysmal.  He was stripped, fastened to a stretcher with duct tape, and enclosed in a windowless metal shipping container. He was fed starvation-level rations.  When he needed to urinate, the stretcher was lifted into a vertical position so that he was forced to wet himself. Guards heard him crying and talking to himself inside the box. He was exposed to the frigid weather. His wounds were inspected by medical personnel but not treated; shackles cut blood flow to his hand and caused excruciating pain, which his captors refused to relieve; he was taunted by guards who cocked a gun to his head and threatened him with death. Foreshadowing Abu Ghraib, photographs circulated with salacious slogans (“shithead”) written on his blindfold.

After two weeks of imprisonment in the container, he was cut loose from the stretcher, given pajamas to cover his nakedness, and interrogated for several days by an FBI agent. During the questioning, he was, in all likelihood, in a state of delirium resulting from gastrointestinal infection, starvation, dehydration, hypothermia, frost bite, pain, and infected bullet wounds. When he was transferred to a U.S. navy ship, medical personnel were shocked at his condition. Denial of medical care and food to prisoners of war was still, in late 2001, a violation of the rules of conduct set by the Geneva Conventions and the Army Field Manual.

The interrogation by the FBI agent was legally defective.  FBI regulations require the presence of a second agent and a verbatim transcript.   There was neither in Lindh’s case.  The agent acted alone and produced only a redacted account of the questioning which Lindh never signed.  Moreover, Lindh’s debilitated state rendered him incapable, from a legal point of view, to waive his waive his Fifth Amendment right not to be interrogated.

Lindh was informed that he had a right to have a lawyer present during the interrogation but that no lawyer was available in Camp Rhino. He was not told that his family had already arranged for representation.  After his return to the United States, interrogations continued for almost two months before Lindh was allowed to speak with his lawyers.  The violation of his right to counsel was glaring.

From the start, the absence of legal representation alarmed legal staff in the Justice Department.  The Professional Responsibility Advisory Office issued an advisory that interrogation without an attorney would be illegal and that evidence obtained would not be admissible in court.  The FBI proceeded with the interrogation anyway.

None of this was revealed in public testimony because the Bush administration decided to bring the legal proceedings to a halt.  This decision undoubtedly had the imprimatur of Bush, Cheney, and Ashcroft.  The plea offer was made three days before a hearing on the defense’s motion to exclude the FBI interrogation, which was the prosecution’s only incriminating evidence. The defense had military and medical witnesses from Afghanistan ready to testify about Lindh’s mistreatment and his debilitated condition while he was held in Camp Rhino.

One clear objective of the plea bargain was to prevent testimony about the torture of an American citizen.  In the light of the newly released torture memos which were in gestation at the time, Lindh’s mistreatment included elements of “aggressive treatment” that were later built into the regime of “enhanced interrogation techniques”:  extreme confinement, enforced posture, threat of execution, humiliation, nutritional deprivation.  Compared to the treatment of detainees at Guantanmo Lindh’s torture was mild and brief.  It was also gratuitous.  It was not carried out with the objective of obtaining information from Lindh or terrifying other detainees into cooperating.  It expressed the hatred and the desire for vengeance that prevailed in the post-9/11 zeitgeist.

This was not the only cover-up.  The plea bargain also forestalled testimony about improprieties in the Justice Department.  The denial of legal representation would have been litigated in the pretrial hearing.  The denigration of professional judgment and the politicization of personnel decisions would have come into public view during the hearing. The lawyer who issued the ethics advisory against interrogating Lindh was sacked and then hounded professionally after leaving government service.  Email memoranda regarding the advisory could not be found when the judge ordered them turned over to Lindh’s lawyers. These were the first instances of the devaluation of legal professionalism and the destruction of evidence that occurred repeatedly during the Bush administration.

So the administration had several powerful reasons for wanting to keep Lindh’s case out of public view. It is not stretching the truth to say that he was railroaded into taking a guilty plea for the political needs of the administration.  Had the hearing and trial proceeded, the country might have been alerted early in 2002 about the moral and political dangers that lay ahead.

Lindh is now in a legal cul de sac.    As an initial step in the project of closing Guantanamo, President Obama has ordered a review of the remaining detainees.  But the case of Detainee #001, the first prisoner of Bush’s wars, will not be reviewed because Lindh’s Guantanamo is in Terra Haute, Indiana.

Lindh’s only route out of prison is a grant of presidential clemency.

There is a political and moral challenge here for Barack Obama.  He might some day quietly include a commutation of sentence for Lindh in a list of routine pardons as a matter of mercy or compassion.  That may be politically feasible in a year or two, especially if lifting the communication barrier enables Lindh and his family to publicize his plight and advocate for his release.

The challenge for Obama is to exercise his power of clemency for the same reason that he has ordered the closing of Guantanamo, jettisoned military tribunals, and released the torture memos:  to acknowledge and repair the damage that Bush and Cheney have inflicted on constitutional government and the rule of law.  Like the first presidential pardon by George Washington of people indicted in the Whiskey Rebellion in 1795, like Gerald Ford’s pardon of Richard Nixon and Jimmy Carter’s pardon of draft refusers, freeing Lindh should be done as a political act with political objectives.

Lindh’s case is important because the government trampled on his rights, used it immense power to railroad him into prison and then silenced him while they planned the next war.  An order of clemency would unequivocally express Obama’s personal repudiation of what was done to this citizen.

This is a challenge that puts Obama on the spot.  It does not have the pitfalls of alienating powerful institutions like the military and the CIA. It has none of the legal complications of prosecuting government personnel who tortured prisoners while complying with Bush’s “rules of torture”. It has none of the legal murkiness of punishing the legal Lilliputians who rigged the torture memos to advance Bush’s agenda.  Freeing Lindh would not, as Cheney might warn us, embolden our enemies, make us more vulnerable to terrorist attack or betray state secrets.  Clemency sets no precedents. The legal basis for freeing Lindh is grounded in the Constitution itself. like other controversial acts of pardon and clemency, it will no doubt provoke consternation and political debate.    It will intensify the debate about Bush’s assault on the rule of law, which is wholly desirable.

Clemency for Lindh would put a real live, thinking, talking person before the American people, someone who can bear witness to what has been done in the name of protecting the nation.  As we know from the testimony of wrongfully convicted people who are exonerated after decades in prison, such testimony is powerful and can wake people up to the injustices that are inflected by the legal system.

The testimony of  individuals who have been wrongly convicted and then exonerated necessarily raises the question of how many more people wrongfully convicted people are locked up in our prisons.  Obama’s political commutation of Lindh would raise the question of how many others have been swept up in anti-Muslim dragnets, and are now locked up for years in prison, silenced with Special Administrative Measures,  because Bush, Cheney and their Justice Department played fast and loose with the laws and the courts in their “war on terror”.

MICHAEL TEITELMAN lives in New York. He can be reached at: mt258@columbia.edu