[Ppnews] Obama, Torture and John Walker Lindh

[Political Prisoner News]

http://www.counterpunch.org/

May 22-24, 2009


Why Closing Gitmo Starts in Indiana


Obama, Torture and John Walker Lindh

By MICHAEL TEITELMAN

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: <mailto:mt258 at columbia.edu>mt258 at columbia.edu




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