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Chapter 1 in the tale of John Walker began when CNN broadcast photos and an interview with the filthy, wounded Taliban/al-Qaeda fighter. It ended with his transfer to first one Navy ship and then another in the Arabian Sea.


Chapter 2 consisted of silence about what was happening to Walker-Lindh, but much speculation about what would happen. I predicted no treason indictment, and charges being laid under 18 United States Code Sections 371 and 2332: conspiracy to kill Americans. Another possibility I suggested was providing "material support" to a terrorist organization. And I believed that Walker-Lindh (whom I, like his lawyers, will now call Lindh) would be "first brought" into the Eastern District of Virginia for trial.


Chapter 3 consisted of the filing of a criminal complaint against Taliban John in that very district. It charged him with the Section 371 and 2332 crimes (conspiracy to kill Americans) and as an aider and abettor/conspirator on the "providing material support" crime. In explaining these crimes, I said that: "Conspiracy is proved by evidence showing an agreement to do something illegal (e.g., killing Americans in general, and/or Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). 'The act in furtherance of the conspiracy' can even be something wholly legal (e.g., marching). Providing material support to terrorists is proved by evidence showing either direct assistance, or less direct aid to them coupled with the intent that they succeed. Conspiracy to provide material support is proved by evidence of an agreement to provide that support, and any overt act in furtherance."


Chapter 4 has just begun, with the filing of an indictment against Lindh. It differs from the criminal complaint filed against him a few weeks ago in significant respects, and in doing so reveals the government's strategy for how it intends to convict Lindh. The only way to grasp fully that strategy is by a count-by-count analysis of the indictment -- in part by contrasting it with the earlier (now superseded) criminal complaint.


The first noteworthy point is that the government supported Lindh's arrest a few weeks ago simply on the basis of an "affidavit in support of a criminal complaint and an arrest warrant" signed by a Special Agent of the Federal Bureau of Investigation. Her allegations were not tested by anyone, and the arrest warrant was issued on the basis of the affidavit alone. In contrast, the indictment was laid on the basis of a formal presentation made to a grand jury by the United States Attorney for the Eastern District of Virginia. While neither Lindh nor his attorney appeared before the grand jury, nevertheless the government did have a burden to convince the grand jurors that there was probable cause to believe Lindh had committed crimes in violation of the United States Code. Apparently, the prosecutors succeeded in carrying their burden, the grand jury having issued a ten-count indictment.


Next, it's worth looking at the usually benign caption of the case. It's "United States of America" versus not simply "John Phillip Walker Lindh," but following the defendant's actual -- if you will, American name -- the government has added "a/k/a [also known as] 'Suleyman al-Faris' and a/k/a 'Abdul Hamid'." Clearly, it would have been enough to name the defendant by his American name. However, by twice adding Lindh's noms de guerre, the government connotatively has succeeded in characterizing him, at least in part, as an Arab.


The criminal complaint was, in its own words, "not intended to include every fact or matter observed by [the FBI Special Agent] or known by the Government," and, as we examine the indictment, we'll see why.


The rather sketchy factual portion of the criminal complaint had provided information about the prison revolt, the Lindh-Walker interaction, and the Lindh-FBI interviews. The latter included details of Lindh's peregrinations, his al-Qaeda training, his contact with bin Laden, Lindh's military activities, and his knowledge of some of bin Laden's activities and intentions. Basically, that was it.


Certainly, the criminal complaint did not present the history and nature of al-Qaeda, Harakat ul-Mujahideen (HUM), the Taliban, and the relationships of and connections between all three. Nor did the criminal complaint refer to Executive Orders recognizing the Taliban as a threat to the national security and foreign policy of the United States. Nor to the national emergency declared by President Bush as a result of the terrorist acts of September 11th. Nor to the United States military response. In contrast, the indictment has pleaded all of these facts, and it has done so as factual predicates to the ten counts charged against Lindh.


Count One, "Conspiracy to Murder United States Nationals," incorporates all the facts alleged earlier in the indictment -- the most relevant ones being those describing his connection to the Spann murder, and Lindh's training and fighting with terrorists -- and on the basis of those facts, the indictment alleges that from May 2001 through December 2001 Lindh conspired to kill Americans, both civilian and military personnel. Remember that conspiracy requires an agreement and an overt act. As to the former, paragraphs 3 and 4 of the indictment allege that "members and associates of al Qaeda would commit terrorist acts and kill Americans around the world . . . and "members and associates of al Qaeda and the Taliban would violently oppose and kill American military personnel and other United States Government employees serving in Afghanistan after the September 11 attacks." In other words, there was a conspiracy of people and entities, with whom Lindh was associated, to commit serious crimes. What, then, were the overt acts -- proof of any one being sufficient to convict -- by either Lindh himself or any other member of the conspiracy, in furtherance of that conspiracy?


Depending on how one reads the indictment, it pleads at least twenty-one overt acts. Lindh told HUM he wanted to fight with the Taliban in Afghanistan; he crossed from Pakistan into Afghanistan for that purpose; he presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; he agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; he traveled to, and stayed in, a bin Laden guest house; he trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; he met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; he met with a senior al-Qaeda to discuss where he would fight; he swore allegiance to jihad; he traveled to Kabul, where he was issued a weapon; he marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; he fought Northern Alliance troops; for four or five months he was under arms; he remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; he remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda; he retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison; he was interviewed by CIA agents, who were seeking to identify al-Qaeda members among the prisoners; he was in the prison when Taliban detainees attacked Spann and his colleague, overpowered the guards, armed themselves, and killed Spann; he retreated, though wounded, with other detainees to a basement; he remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out.


In sum, the indictment's Count One charges that Lindh joined a terrorist conspiracy to murder Americans, and committed overt acts in furtherance of that conspiracy. If the government can prove that there was such a conspiracy, that Lindh joined it, and that he committed even one of these overt acts in furtherance of that conspiracy, the jury should convict.


Count Two charges a second conspiracy, this one an agreement with persons, some known and others unknown, to provide material support and resources (defined in 18 United States Code Section 2339A(b)) to the foreign terrorist organization, HUM. The overt acts are those set forth above. In sum, if the government can prove that HUM was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should convict.


Count Three is essentially the same count as Count Two. Whereas Count Two charged a conspiracy, Count Three charges Lindh as a principal in providing, or attempting to provide, material support and resources to HUM. For this, no agreement is necessary. Proof of an overt act so providing should result in a conviction.


Count Four tracks Count Two. Whereas Count Two charges Lindh with a conspiracy to provide material support and resources to HUM, Count Four charges the same kind of conspiracy to al-Qaeda The overt acts charged are the same. The same proof that would be used to support Count Two would suffice for Count Four, so that if the government proved that al-Qaeda was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should similarly convict.


Count Five is essentially the same as Count Three. It charges Lindh with being a principal in providing, or attempting to provide, material support and resources not to HUM as in Count Three, but rather to al-Qaeda. Here, no proof of an agreement is necessary. If the government proves that Lindh, by any of the overt acts charged, provided or attempted to provide the statutorily-defined "material support and resources" to al-Qaeda, the jury should convict.


Count Six -- "Conspiracy to Contribute Services to al-Qaeda" -- and Count Seven -- "Contributing Services to al-Qaeda" -- charge that Lindh conspired with others to provide services to al-Qaeda, and that he did so himself. For proof of the conspiracy, the government will have to prove that al-Qaeda was a terrorist organization, that Lindh agreed with others to provide it services between roughly May and December 2001, and that he, or any other conspirator, committed any overt act charged in furtherance of the agreement. To prove that Lindh was a principal, any of the charged overt acts that provided services would suffice for a conviction.


Count Eight -- "Conspiracy to Supply Services to the Taliban" -- and Count Nine -- "Supplying Services to the Taliban" -- are essentially the same as Counts Six and Seven, applying to the Taliban rather than to al-Qaeda. The proof analysis is the same.


Count Ten -- "Using, Carrying & Possessing Firearms and Destructive Devices During Crimes of Violence" -- is an interesting charge. Under federal law, it is a crime to "use, carry and possess" items defined as "destructive devices" either during, in relation to, and in furtherance of certain crimes of violence for which one could be prosecuted in a United States Court. Certainly, as the factual predicate allegations of the indictment charge, Lindh used, carried and possessed two types of defined "destructive devices: rifles and grenades. It is charged that doing so was "during, in relation to, and in furtherance of crimes of violence" for which he could be -- indeed, he is being! -- charged in a United States court, to wit: Counts One and Counts Four through Nine inclusive. Although there is not much case law interpreting this statute, it seems pretty clear what the government has to prove: using, carrying and possession of destructive devices for use in certain crimes. This brings us back to the core of each of the government's first nine counts: the overt acts.


Because it will be easy for the government to prove that HUM and al-Qaeda are terrorist organizations, that there was a conspiracy among and between those organizations and others, and that Lindh was with both organizations, his guilt or innocence as a principal, aider and abettor, and/or conspirator, will depend on whether he -- or, in the conspiracies, any other conspirator -- committed a requisite overt act. The government has charged over a score of those acts, and if even one is proved, Lindh ought to be convicted of virtually, if not actually, everything with which he is charged.


I am often asked whether this indictment signals the last of the charges against Lindh? Maybe not. Asked at the press conference announcing the indictment about the possibility of a treason count, United States Attorney for the Eastern District of Virginia Paul J. McNulty said: "As far as other charges [are concerned], we have the opportunity or right to have a superseding indictment if the evidence justifies that." The fact is that since treason consists of (1) an intent to betray the United States, (2) expressed in an overt act, (3) testified to by two witnesses, (4) that gave aid and comfort to the enemy, given the facts set forth in the indictment, a treason charge awaits only two of the detainees in Afghanistan or Guantanamo who fought with -- or, for that matter, against -- Lindh to be deemed credible witnesses. Then, we may -- indeed, we should! -- see that superseding indictment to which the United States Attorney referred.