- The Washington Times - Thursday, July 18, 2002

Weary from his months in combat and confinement, John Walker Lindh stood before U.S. District Judge T.S. Ellis III in green prison scrubs on Monday and pled guilty to two felony counts relating to his sojourn as a Taliban soldier in Afghanistan.
By pleading guilty, Lindh secured his own fate of 20 years behind bars a light sentence given the possibility under his indictment. But more importantly, Lindh also contributed to the American war on terrorism in two very important ways.
First, Lindh agreed to cooperate fully with American law enforcement and intelligence agencies without the possibility that his sentence may be reduced. Though Lindh was a foot soldier, he did see much of the organization and leadership of the Taliban and al Qaeda. His knowledge of those organizations will be invaluable in building a sketch of those two organizations. This basic sketch will aid intelligence officers and prosecutors as they decide the fate of the detainees we now house at Guantanamo Bay.
At this point in the war, we have not turned a single witness against these organizations. Our field officers lack the internal perspective on our enemies to build even a rudimentary organizational chart. They cannot decide what to do with the men at Guantanamo without this information, and they cannot synthesize the information gathered at Guantanamo into a larger picture.
More importantly, they lack some of the baseline information they need to assess and analyze incoming information about future attacks. The information locked inside Lindh's head may provide some of this picture, and inform our conception of what al Qaeda truly looked like as an organization. Ten months into the war on terrorism, we lack any sort of insider's perspective on this organization. Lindh will give us an important bottom-up look into the way that al Qaeda trained its legions of foreign-born mercenaries and fielded them alongside the Taliban.
Second, this plea bargain serves as damage control for the federal government. It ends a case that could have easily shattered its entire legal strategy in the war on terrorism. Lindh's defense team was very good. They objected to virtually every piece of evidence and made it very difficult for the federal prosecutors to build their case. Defense Attorney James Brosnahan was not about to roll over when the government cried "exigencies of war" or allow Lindh's initial treatment to go unnoticed. Whether these things happened in the fog of war or not was irrelevant they were objections which could be made in the court of law.
Mr. Brosnahan and his legal team exploited the fact that Lindh's case fell on the seam between law and war. They highlighted the ways that American soldiers do not capture enemy combatants for the purpose of trying them in civilian courts. Lindh's legal team made great use of photos which showed him lying supine on a stretcher. This treatment would not be aberrational in war, but it shocked the conscience of many observers because it was such a departure from our norms of criminal justice. Mr. Brosnahan also objected to evidence gathered in the conduct of war, such as Lindh's weaponry, because they could not satisfy the peacetime standards of the Federal Rules of Evidence. All these objections made it abundantly clear that though Lindh may be guilty of crimes in war, he may not be convicted in a court of peace because of our high constitutional standards.
Indeed, if there were ever a case which screamed for a military commission, it was that of Lindh. His case exemplified the reasons why civilian courts are ill-equipped to deal with the exigencies of war. Instead of allowing for the realities of battlefield capture, the federal courts punished the prosecution for it. Similarly, the federal rules punished the prosecution for the need to immediately interrogate Lindh on the battlefield, and almost quashed his statements altogether. Military courts, designed by soldiers for soldiers, better understand the exigencies of war.
And in this conflict, where the distinctions between law and war are even more fuzzy, military commissions provide an alternative form of legal process for prisoners whose actions fall in the gray area between crime and warfare. But for his U.S. citizenship, Lindh should have been tried by a military commission. Such a forum would have been better equipped to adjudicate his guilt or innocence by considering the evidence and the exigencies of war.
President Bush's executive order did not provide for Lindh's trial by commission, since he is a U.S. citizen. But we ought to seriously consider the use of commissions in the future for such defendants who fall on the line between law and war.

Phillip Carter is a former Army officer who specialized in antiterrorism and force protection while on active duty; he now attends the University of California Los Angeles School of Law.

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