THE DESPERATE DEFENSE
It's obvious that despite its bravado, the John Walker Lindh defense camp is desperate.
First, we saw two examples of "graymail," a tactic used by defense lawyers in national security cases. The idea is for the defense to seek in the discovery stage of the case highly sensitive documents and testimony so that the government is put on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government, understandably, is loathe to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn't want).
The defense's first try at graymail sought not only testimony from CIA agent "CS-1" (probably the "Dave" who, with the late agent Mike Spann, interrogated Lindh just before the prison uprising during which Spann was killed), but also his identity. The defense lost that round. Graymail Round Two is the defense's so far unsuccessful attempt to interview Guantanamo prisoners via some sort of TV hook-up, rather than by written questions (interrogatories). In each case, the defense had at least three goals: (1) try to put the government on the horns of either complying with the discovery request and compromising secrets, or dropping the charges; (2) create sympathy for its client by demonstrating the government's unfairness; and (3) establish grounds for appeal.
None of this has worked. Nor will it. The defense can prepare its case without knowing "Dave's" identity and without putting Guantanamo's orange-suited prisoners on TV (a ruling on the latter request is due at the end of the month) - and any complaint that the defense raises will go nowhere on appeal, on due process or on any other grounds.
The second unmistakable sign of the Lindh defense's desperation is not so much that they are seeking to dismiss all or part of the indictment (this was predictable; that's what lawyers do), but rather the grounds on which they seek to do so. Grounds so far- fetched that one wonders how Lindh's lawyers could have asserted them with a straight face. I'll address the three most indefensible.
"Combat immunity." Lindh's lead lawyer, James Brosnahan, and his team have made the absurd argument that the charge against their client should be dismissed because of some purported "well-established international law principle of combat immunity." The New York Times explained their theory this way: "They said the court should dismiss the charge of conspiracy to commit murder because all foot soldiers are immune from prosecution [for] actions during combat." Putting aside the question of whether so-called "international law" has any place in a federal criminal trial for violation of federal law, the fact is that neither the Supreme Court of the United States nor any other federal court has ever held that an American citizen charged with conspiracy to murder another American(s) - not actually murdering, during combat or at any other time, but rather conspiring to murder - possesses any kind of immunity under "international" or any other kind of law.
"Freedom of association." More absurd than their "combat immunity" argument for dismissal of the indictment is the defense's contention that some of the charges against their client should be dismissed, in the words of The New York Times, "because they seek to punish him for merely associating with unpopular groups including the al-Qaida terror network" (emphasis added). The defense motion put the point this way: "Central to First Amendment freedoms is the right to associate with unpopular and disfavored groups." Presumably, Mr. Brosnahan would argue that John Gotti had a constitutional right to "associate" with Cosa Nostra regardless of what they were "associating" to do: commit murder, deal drugs, engage in extortion. The point here is that Lindh is not being charged with "associating" with two terrorist organizations - al-Qaeda and Harakat ul-Mujahideen - but rather that he joined a terrorist conspiracy to murder Americans, that he committed more than twenty (perhaps scores) of overt acts in furtherance of that conspiracy, that he conspired to provide material support and resources to those two terrorist organizations, and that he actually provided such support. Lindh's defense team might have a legitimate argument if the indictment against their client charged him with joining ("associating" with) some United States political party, but their contention that "associating" with terrorists and terrorist organizations is somehow constitutionally protected is silly.
"Right to bear arms" In perhaps the most absurd argument of all, Lindh's lawyers are arguing that Count 10 of the indictment should be dismissed, also for a reason grounded in the Constitution of the United States of America. Count 10 is based on a federal statute that criminalizes "using, carrying and possessing firearms and destructive devices during crimes of violence." The count was alleged because the government believes Lindh used, carried and possessed rifles and grenades in his role - so characterized by his own lawyers - as a "foot soldier" for the Taliban. Additionally, the indictment charges that he did so "during, in relation to, and in furtherance of crimes of violence." Seems pretty clear. So what is Lindh's defense team's argument? When Lindh took up arms on behalf of the Taliban and al-Qaeda, according to his defense lawyers, he was doing nothing more than exercising his constitutional right to bear arms, as protected by the Second Amendment to the Constitution of the United States of America. That's correct; that's what they've argued to a United States District Judge in Alexandria, Virginia. And where did such a ridiculous notion come from? Why, from a footnote in a recent government brief filed in the Supreme Court in a case that had nothing to do with the Second Amendment, nothing to do with the Count 10 statute, and nothing to do with Lindh. The Justice Department's throw away line in that case - obviously not a judicial opinion interpreting the Second Amendment - is of no precedential value whatever. Under the defense's theory, the Second Amendment protects a possessor of firearms no matter what use he makes of them. Under the defense's theory, armed bank robbers are protected by the Constitution. The inconvenient fact is that Lindh is charged not with merely possessing firearms, but with using them in a manner inimical to the interests of the United States. (Doubtless, the NRA won't be filing a friend-of-the-court brief on behalf of Mr. Lindh.)
If, then, these three arguments are so patently useless, the question necessarily arises as to why they have been made - especially in lieu of arguments which may have been stronger.
To answer this question, it is necessary to understand the nature of a motion to dismiss specific counts of an indictment. An indictment is a charge of criminal wrongdoing. For example, Lindh has been charged with entering into an agreement with others to kill Americans. That's a legitimate crime under federal law. Pursuant to that charge, at the trial the government must produce proof that Lindh did make that agreement, and that any one of the conspirators committed any act in furtherance of the conspiracy. There is no way that defense lawyers can get such an indictment dismissed because conspiring to murder is a crime, and the government is entitled to an opportunity to show at trial that this is what the defendant did. On the other hand, if the government indicted a man for, say, marrying an unattractive woman for her money, that indictment would properly be dismissible. Why? Because however reprehensible that kind of gigolo conduct, it is not illegal, and because even if the government could prove that's what happened, it would not add up to a crime.
In light of this, let's take another look at what Lindh is charged with: joining a terrorist conspiracy to murder Americans, committing more than twenty (perhaps scores) of overt acts in furtherance of that conspiracy, conspiring to provide material support and resources to those two terrorist organizations, and actually providing such support. All these are legitimate federal crimes, and the government has a right to produce evidence at trial to prove that this is precisely what Lindh did.
Unless, somehow, the defense can prove that there are defenses to the crimes charged.
If, legally, "combat immunity" is not a defense, if "freedom of association" is not a defense, if the Second Amendment is not a defense, if Lindh's motion to dismiss the indictment on these grounds is doomed to fail - and it is! - then why did the Brosnahan team make the motion?
Because Lindh has no defense. Instead, his lawyers are shotgunning the government with baseless defenses and motions to dismiss in the forlorn hope that perhaps something will work. Nothing will. Surely the defense understands that if Lindh goes to trial, he will be convicted. The Lindh defense needs to be reminded that for someone in their client's position, the best defense is a good plea bargain - which is where this case will probably end up. Otherwise, Taliban John Walker Lindh will not breathe free air for a very long time.
