6 May 2009

By Dave Lindorff

Should Congress or the US Department of Justice—or perhaps Spanish Investigating Magistrate Baltasar Garzón—ever decide to seriously prosecute those in the US who are responsible for the Bush/Cheney administration’s policy of torturing captives in the Iraq and Afghanistan Wars and the so-called “War” on Terror, they should go back and examine the case of imprisoned American John Walker Lindh, the young man who was captured with Taliban fighters back in the early days of the US invasion of Afghanistan in 2001.

It is well documented that Lindh was subjected to what any objective observer would call torture—duct-taped naked to a gurney, his eyes also duct-taped shut, left alone for 23 hours at a stretch in a closed, unheated, unlit steel shipping container, his wounded leg left untreated for a week, removed to be interrogated, threatened repeatedly with death by his American captives, mocked when he asked to see an attorney (his Constitutional right as a US citizen).

But it seems clear that the abuse and torture to which Lindh was subjected after he was captured in Afghanistan was, like the abuse of captives held at Abu Ghraib Prison in Baghdad, not the freelance work of bad apples in the US military. Rather, it was directed from on high within the military chain of command.

One of the documents obtained by Lindh’s lawyers, who finally got on the case once Lindh had been flown home by the government to face trial as a traitor to America, was a written memo from the office of Secretary of Defense Donald Rumsfeld, instructing Lindh’s captors to “take the gloves off” in interrogating Lindh. The memo, signed by Rumsfeld’s Defense Department General Counsel William J. Haynes II, does not lay out in detail the specific treatments to which Lindh can be subjected, but appears to simply tell his tormentors that they are free to use harsh measures.

Taken in context with subsequent developments, it seems clear that this was the opening of the door to torture of captives by the administration.

One clue that the administration was hell-bent on torturing Lindh is how it handled internal objections to that plan. When Justice Department attorney Jesselyn Radack, a specialist in prosecutorial ethics who was involved in the case, warned prosecutors in the Justice Department’s terrorism unit (headed at the time by Michael Chertoff, later to be secretary of the Department of Homeland Security) that Lindh, because he had requested an attorney, could no have evidence used against him at trial that was obtained by questioning done without an attorney present, she was pushed out of her job at the Justice Department, and subsequently hounded, threatened and harassed by the Bush Administration.

More evidence of what was going on with Lindh, and of the importance of his case to the whole sordid tale of administration torture-mongering, is the way he was silenced once his case got into federal court.

From the start, the government’s intent was to fly Lindh, a resident of Marin County outside San Francisco, which lies in the most liberal federal court district in the country, to Virginia, where his case would instead be handled by what is arguably the most conservative judicial district in the nation. Lindh’s case was assigned to Federal District Judge T.S. Ellis, a former Vietnam-era combat pilot and an appointee to the bench of President Ronald Reagan. Attorney General John Ashcroft, who had touted the captured Lindh as “the American Taliban,” and Chertoff, who headed up the terrorism unit at the Justice Department, both had every expectation that Judge Ellis would be accommodating in their efforts to suppress any evidence of torture in Lindh’s case. And they had a report from his FBI interrogator—something called a 302 document--purporting that Lindh had confessed to having been fighting against the Americans and linked to Al Qaeda—all they needed, they felt, to get him convicted on the most serious charge of plotting to kill Americans which would have sent him away for multiple life sentences.

But Judge Ellis, in the early days of pre-trial hearings in June, 1982, surprised prosecutors when he agreed to a request by Lindh’s attorneys (a team hired by Lindh’s family and led by San Francisco defense attorney James Brosnahan), for an evidenciary hearing at which Lindh would be able to challenge the admission of evidence that he had confessed by introducing evidence that he was being tortured at the time.

This judicial ruling threw the government into a panic. If Lindh brought in witnesses from Guantanamo or from Afghanistan who could testify to his torture—as the judge indicated he would agree to allow him to do--it would expose the administrations’s whole secret campaign of torture just as it was getting going in Afghanistan and Guantanamo Bay.

As I wrote in an article in the Nation back in 2005, on the Friday before that suppression hearing, which was set for Monday, June 12, 2002, the Justice Department, at the direction of Assistant Attorney General Chertoff himself, offered Lindh’s attorneys a one-day-only, take-it-or-leave-it plea deal. Chertoff (acting with an alacrity that stands in stunning contrast to his sluggish response time several years later when faced, as secretary of homeland security, with the Katrina disaster in New Orleans) offered to drop the serious charges of conspiracy to murder Americans, supporting terrorism, and all other more serious charges, in return for a guilty plea to the two most minor charges facing Lindh, but only if—and this is the key—Lindh would cancel the scheduled evidentiary hearing. Under the offered deal, Lindh was also required to sign a letter drawn up by Chertoff’s office stating that he had “not been intentionally mistreated” by his American captors, and waiving any right to claim such mistreatment or torture any time in the future. Lindh agreed to this patently false demand, but following sentencing, Chertoff also, for good measure, added a gag order--technically a “special administrative measure”--barring Lindh from even talking about his experience for the duration of his sentence.

It is now clear why Chertoff went to such hurried and extraordinary lengths to completely silence Lindh. His wasn’t just the first trial in the “War on Terror.” Lindh was the first victim of the secret Bush/Cheney torture program.

At the government’s request, Judge Ellis sentenced Lindh to 20 years on the two minor counts to which he pleaded guilty. The sentence itself was absurd. The first charge was “carrying a weapon,” something that Texans and residents of what Sarah Palin called the “real” Virginia do every day, and the second, “providing assistance” to an “enemy” of the United States, is actually a violation of a trade law intended for use against US companies that trade with proscribed countries on a government “no trade” list like Cuba or North Korea. Ordinarily, conviction on this latter violation results in a fine for the companies involved. No one goes to jail for it.

What is clear now is that Lindh was sentenced so heavily on these minor charges not because he was a traitor, a murder conspirator or terrorist, but because he was living proof, back at the time of his trial in 2002, that the US had begun, way back in late 2001, a program of brutal torture in the so-called “War on Terror.”

What makes his silencing particularly troubling is that had he been allowed to continue with his trial, or even had he not been gagged in prison, that torture campaign might have been exposed and halted long before it began in ernest at Guantanamo and before it "migrated" to Abu Ghraib and Bagram Air Base in Iraq and Afghanistan, where its eventual exposure so inflamed local populations and so damaged America's reputation around the globe.

Lindh, in fact, was never really an enemy of the US. Son of middle-class white parents and raised in a suburb of San Francisco, he had developed an interest in Islam which, following his graduation from high school, he decided to pursue by traveling to Pakistan. In 2001, still just 18, he began studying at a religious madressa. There he learned about the struggle of the Taliban in neighboring Afghanistan to free that nation from the influence of warlords who had collaborated with a brutal Soviet occupation. Attracted by what he saw as the nobility of that struggle, and with a youthful sense of adventure, Lindh volunteered. One can criticize Lindh for wanting to support a medieval throwback organization that was executing women by stoning for "offenses" like adultery and that was barring girls from attending school (though now of course our military is fighting to defend a puppet regime that does the same things). What cannot be disputed, though, is that in August of 2001, at a time that Bush administration officials were negotiating about a possible oil pipeline deal with Afghanistan’s Taliban government, and talking about providing funds for a program to get farmers to shift away from opium cultivation to more useful cash crops—the Taliban were not considered America’s enemy. And that was when Lindh crossed the border and started training to be a Taliban fighter.

A month later, of course, the World Trade Center in New York, and the Pentagon in Washington, were struck, and the US launched a war against both Al Qaeda and the Taliban in Afghanistan. Lindh, who was still just in training, found himself suddenly in the wilds of the Hindu Kush, with American planes bombing and with US Special Forces troops firing at him and his companions. Whether he wanted to be there or not, he was in no position at that point to change sides. You don’t just walk away from a group like the Taliban—especially if you are an American to begin with, and you’re deep in the bush.

Eventually, a malnourished, dehydrated, Lindh was taken prisoner along with a group of Taliban fighters by American forces.

At that point, when the Americans discovered they had an American among their captives, Lindh’s situation worsened dramatically. He was interrogated in an old fort serving as a prison camp by two CIA agents, in the presence of hundreds or other captured Taliban fighters, a situation which may have led to the uprising of those captives which occurred right then. It was during that uprising that Lindh's interrogator, CIA agent Johnny “Mike” Spann, was killed. Lindh and the other prisoners took control of the old fort where they had been held, and fought off their captors for days before finally being retaken. By then Lindh had an American bullet in his thigh, which was subsequently left untreated by his American captors for over a week.

Stripped naked and duct-taped, blindfolded, to a gurney, he was then placed inside an unheated metal shipping container. Left there for days in the cold and dark, Lindh was removed once daily and interrogated. His interrogators allegedly tortured him, as well as threatening him repeatedly with death. His pleas to see an attorney were mocked, and word that his parents had already arranged for representation was withheld from him (a situation that led a government lawyer involved in his case to protest and ultimately resign). All of these abuses, it must be noted, are express violations of the Geneva Conventions, of which the US is an author and signatory, and of the US Criminal Code.

Since his conviction seven years ago, Lindh has been serving his sentence at a federal prison in Indiana called FCI Terre Haute.

Now that we have the trail of memoranda that set that the Bush/Cheney torture campaign in motion, it’s time for the Obama Justice Department to free Lindh. If President Obama and Attorney General Eric Holder think Alaska Sen. Ted Stevens suffered from malicious prosecution and were willing to drop all charges against him, they certainly should toss out the case against Lindh, who besides being innocent of the original serious charges leveled against him, was a victim of war crimes perpetrated by his own fellow Americans, and, it appears, authorized by his own government. His arrest, conviction and sentencing are a travesty of justice, and perhaps, given that torture is a criminal offense in the US Code, even constitute a crime of cover-up.

Perhaps more importantly, Lindh should be the first witness in any official investigation by Congress or the attorney general’s office into the origins of the Bush/Cheney torture campaign.