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April 23, 2007

Like comedy, sentencing is all about timing

This week's installment of Adam Liptak's "Sidebar" column in the New York Times spotlights differing sentencing outcomes for certain enemies.  Here are excerpts:

At the time, a year after the Sept. 11 attacks, it looked like John Walker Lindh had made a pretty good deal.

Mr. Lindh, a 21-year-old from Marin County, Calif., who had served as a Taliban soldier in Afghanistan, faced charges that could have sent him to prison for the rest of his life. In a plea deal, though, the government dropped its most serious accusations ... [and he] was sentenced to 20 years....

Times change.  Passions cool.  Other cases offer telling contrasts.  And Mr. Lindh now has a powerful and understandable case of buyer's remorse.  "He was a victim of a hysterical atmosphere post-9/11," Frank R. Lindh said about his son....

[T]wo men accused of quite similar conduct [Yaser Hamdi and David Hicks] managed to make much better deals.  They had the good fortune, it turned out, to be held by the military rather than by civilian authorities, and they probably also benefited from the fact that the memory of the Sept. 11 attacks had receded a little by the time they sat down to negotiate....

April 23, 2007 at 12:49 AM | Permalink


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For this reason, I am thinking of writing a series on my blog entitled Law is Political, Sucka (LIPS). )After I do my essay on public defenders.) I don’t mean this in a bad way. Skilled lawyers know understand legal process, and can help their clients. Unfortunately, as we saw in this case, lives are ruined in the process.

At a minimum, Mr. Lindh can take heart in the knowledge that various German war criminals were eventually released (I think even Mr. Eisentrager, himself.) And, as we have seen, times have changed. Positions have changed. Congress has changed. Heck, in a couple of years the administration will change.

Posted by: S.cotus | Apr 23, 2007 9:36:56 AM

Lindh is lucky for the sentence he got. He should have been executed.

Posted by: federalist | Apr 23, 2007 10:39:08 AM

The only question in my mind is whether we should take Federalist’s comment seriously. Lindh was not convicted of murder. Or treason. The death penalty is not available for “material support.” The plea agreement was fairly specific about what sentences were available. Therefore, a number of his assumptions about “luck” are problematic.

By the way, I think there was an error in the underlying article. If I recall correctly, Lindh’s plea agreement did have a clause in which the government “promised” not to “designate” him an “enemy combatant.”

Posted by: S.cotus | Apr 23, 2007 11:27:08 AM

Based on the information publicly available, I haven't seen anything to suggest that Lindh committed a death-eligible offense.

In any case, I don't think the government truly believed he did. Otherwise, I doubt that prosecutors would have accepted a 20-year sentence.

The government's other problem was a significant chance that much of the evidence would be disallowed, as well as a high likelihood that the methods used to obtain it would be held up to public ridicule.

Since the government has never made its full case public, and Lindh's plea agreement includes a gag order, we may never know the full story. For the actual offense that he admitted, 20 years seems too harsh, but there could be more that we don't know.

Lindh is a jerk (remember his anti-American comments?), and I haven't spent any time weeping over has fate in prison. I realize it's not a crime to be a jerk, but it certainly affects how you're perceived. I don't think there's much chance of a pardon anytime soon.

Posted by: Marc Shepherd | Apr 23, 2007 11:45:59 AM


Was Lindh wearing a uniform etc. when he took up arms against the US? No. Ergo, he was merely a "franc-tireur", and should have been summarily executed.

Posted by: federalist | Apr 23, 2007 12:21:41 PM

Federalist, What are you smoking? Just because someone is not wearing a uniform when captured doesn’t mean that they are ineligible for protections under the GC. (See, if you were a lawyer you would have provided a cite.) Secondly, the government did not even take the position that he had actually fired at US troops. Moreover, the Army regulations do not provide for summary execution of anyone, so there is no luck involved. I think you made this up. Perhaps you can provide the text of such Army regulation.

Anyway, if you doubt me about the uniform requirement, look at Art. IV(a)(2) of GC III. No uniform. There is a “fixed sign” requirement for eligibility for POW status. No uniform.

Posted by: S.cotus | Apr 23, 2007 2:23:18 PM

I was thinking a little more about some battlefield justice for this traitor. And you don't have to fire on US troops to be a combatant. And you're right about the fixed sign--i just used the "uniform" as an easy reference point. (The fixed sign in the American military is usually an American flag for commandos and the like.) The point of the requirement is so that honorable soldiers distinguish themselves from civilians.

As for luck, Lindh is lucky he didn't pull this crap in a more quaint time. We shot German spies (i.e., people violating the rules of warfare) at dawn. Had the same been done to Lindh, justice would have been served.

He could have helped Mike Spann, a real American hero. He did not. He deserves nothing but contempt, and his father ought to be ashamed of himself for taking up his cause and for criticizing the government. Throughout human history traitors such as Lindh would have been dealt with in much harsher fashion. Lindh's father would do well to remember that. Instead, he bashes the government for the "injustice". Appalling.

Lindh will one day be free. Spann is in a box. People ought to remember that.

And yes, I spent five years serving our nation in our Armed Forces.

Posted by: federalist | Apr 23, 2007 2:52:40 PM

Unfortunately, Federalist, just like the courts don’t defend our borders, the military does not provide “battlefield justice.” We did not shoot German spies at dawn in the US. I don’t know of any summary executions in WWII in Europe by Americans, but I might be wrong about this. You should provide specifics.

Moreover, I respect our troops too much to tell them that, if captured (or they meet with the disapproval of their commander), they will be the recipients of battlefield justice. I see where you are going on this, and I am not going there.

Whether you served in the armed forces is absolutely meaningless to this debate and the law. Unless you can point to specific experience dealing with international law issues on a command level to show why our arguments are incorrect. If this were the case, your point of view would be published, and people would cite to it. Heck, you could even cite to your own law review article anonymously.

But this isn’t the case. Instead, you are engaging in non-legal analysis which has, quite frankly, no place in the this discussion. A the saying goes, “If you ain’t a lawyer, you just don’t matter.”

Moreover, it is unclear as to what “crap” Lindh engaged in. Up until a few months prior to the war in Afghanistan, the Talliban was recognized by many governments, and the US had some limited degree of cooperation with them. The Geneva Conventions provide procedures for dealing with “failed states,” and at the time there was considerable debate within the administration about how to treat former members of the Taliban.

Span, for better or worse, was a spy. He was our spy, but still a spy. The current administration takes the position that they are entitled to absolutely no Geneva convention protections.

Posted by: S.cotus | Apr 23, 2007 3:58:51 PM

Read up on Manfred Pernass, S.cotus and other German Battle of the Bulge spies.

As for American troops being captured--we had one captured by al-Qaeda, a US Navy SEAL--he was murdered on the spot. Our following of the GC with respect to these terrorists (admitting, of course, that the Taliban is a close case, but al-Qaeda is not), gets us nothing, by the way. In my view, these terrorists ought to be treated like the British Navy treated pirates--hanging.

Your comment about Spann is beneath contempt.

And this, by the way, is not a legal argument. The article is basically a whine that Lindh didn't get as good a deal as others. My point is that he is damned lucky. Throughout human history people like him would simply be killed. And his dad has the gall to criticize the government. Yuck.

Posted by: federalist | Apr 23, 2007 4:13:58 PM

Federalist is basically right. In times past, Lindh might well have been summarily shot. He could consider himself lucky to be serving only twenty years, and I would be surprised if he were pardoned even one day before the end of his sentence.

Among other things, pardon applicants normally need to show contrition. That's still no guarantee of a pardon, but a necessary step along the way. As far as I can tell, Lindh has shown not one ounce of remorse. His only argument is he believes others got off more lightly.

Posted by: Marc Shepherd | Apr 23, 2007 6:12:00 PM

First of all, if you admit that you are not making a legal argument, then you are really not acting like an American. But, okay.

The CIA has never taken the position that its covert operatives are entitled to protection under GC3. There is no contempt here. The administration further has toyed with the idea that the CIA isn’t bound by GC3. This is nothing radical or new. Whatever the case, I would be interested to know how you figure that a covert CIA agent is protected by GC3.

Al Qaeda is not the Talliban and vice-versa. Even the administration analyzed them differently. (At one point the administration took the position that the Taliban wasn’t a failed state, but its fights were entitled to be treated like POWs, but just not AS POWs.) Therefore, your argument is problematic.

But, let’s assume that the Taliban is AQ and vv (which is silly from the start). Even then, a failure of one contracting party to abide by GC3 does not absolve another party of its duties.

Maybe, the solution is to simply renounce all of the Geneva Conventions. But we need to do it openly. We need to tell our troops that if they are captured they are on their own. We need to make it clear that we follow no law. We don’t need non-lawyers making it up as we go along.

Mr. Shepherd, I don’t have a position on his pardon. I don’t really care. In earlier years, black people would have been summarily shot for doing lots of things, and rape wasn’t really a crime. But, times have changed. But, maybe, as I said, Congress should be very clear that it is renouncing all of the Geneva Conventions. I would urge you to write your Congressperson. This way we can achieve the parity with earlier years that people seem to seek!

Posted by: S.cotus | Apr 23, 2007 9:45:34 PM

S.cotus prattles on.

1) The issue about AQ terrorists and the GC has nothing to do with whether the US is a contracting party or not. Germany and the US were signatories to the GC--that didn't stop Manfred Pernass from getting shot, nor would it stop anyone else from getting executed who violated the rules and customs of war, which AQ plainly does.

2) S.cotus labors under the misconception that the GC is a two-way street with respect to terrorists. It is not. If we were to have a summary execution policy, our guys would still be entitled to all the protections of GC, why, because they observe the laws and customs of war. So, S.cotus, the issue is not whether we should junk the GC--the issue is whether we extend all the GC to terrorists, and we should not. I'll give you an example, in Iraq, at the beginning of the war, some Iraqi troops feigned surrender and then fired on American marines, killing a few. (btw S.cotus, the word for that is perfidy). Once the Iraqi troops did that, they lost the right to claim that we need to follow the GC, and the Americans, under the GC, would be perfectly within their rights to execute these guys on the spot. Same with AQ terrorists who do not conduct armed conflict in accordance with the laws and customs of war.

As for Spann, the issue is not whether he is protected by GC, but whether Lindh should be held to account for his death. Your attempt to minimize Lindh's culpability is truly un-American.

Posted by: federalist | Apr 24, 2007 11:50:51 AM


There is something strange about your statement that “Germany and the US were signatories to the GC.” Hmmm. What could it be? Oh, I know. GC entered into force on October 21, 1950. 1950 refers to a year AFTER WWII. Therefore, your argument regarding the practice of American troops summarily executing people, and therefore ignoring the binding authority of the Geneva Conventions is problematic.

Then you accuse me of “pratling.” You are lucky that lawyers are not just giving you a platitude to chew on. Most of my colleagues would do this, because lay people are not considered worthy of their effort.

Secondly, you seem to misunderstand GC3. (I don’t think you read it, which is somewhat disturbing.) First of all, at the time Army Regulation 190–8, §1–6 (1997) provided for a process to determine whether someone was entitled to POW status. This provision, itself implements GC 3 Art. 5. (“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal”). If you really are a lawyer (or served in the armed forces) you would have at least addressed this issue. But you did not.

But, I would urge you to write your Congressperson, and demand that the US renounce the Geneva Conventions. This way, US soliders could shoot people on site who are not engaged in active combat. I think your view would be popular. (Please tell US soliders that if injured they are subject to being shot by foreign forces, but they will understand.)

The government could have tried Lindh for Spann’s death. But they opted not to. If anyone decided not to hold him to “account” it is the US government. This was a decision taken by the US government at the highest levels, and your beef is with them. Of course, a jury might have acquitted him, because sometimes government witnesses have credibility problems, but that is how life works.

Posted by: S.cotus | Apr 24, 2007 2:03:50 PM

Ah, S.cotus. Once again, moving the goalposts and failing to admit being wrong.

I nailed you on Pernass--by the way.

In any event, this may be news to you--summary does not equal "lawless". A battlefield court-martial would be enough process. Maybe that's not quite "executed on the spot", but close enough. Commissioned officers could easily determine "on the spot" whether rules of warfare were being broken or whether the combatants were entitled to GC protection (my personal view is that all honorable combatants--adhering to known command structure, carrying arms openly, adhering to customs and laws of warfare etc. should get GC protection, no matter what). AQ terrorists clearly are not. And Lindh, like it or not, is an AQ terrorist. He fought against his country, participated in the killing of a US national. For that, he deserves death. And, guess what, military justice does not necessarily need juries.

As for your WWII/1950 issue. So what? I merely meant to show that whether you're fighting someone who is a contracting party or not, war criminals can get summary justice.

Like I said--we should treat these terrorists like the British Navy treated pirates. No mercy. None. That does not mean that we are repudiating GC--actually, we are affirming it. By treating these dishonorable belligerents differently from honorable combatants, we reaffirm that the rules of warfare are to be honored. We should bring such pitilessness to the war in Iraq as well. Any person dishonorably attacking civilians, not carrying arms openly etc. ought to have a summary court martial and then ought to be hanged. Being shot is too honorable.

Posted by: federalist | Apr 24, 2007 7:45:55 PM

You “nailed” me. That is interesting. Unfortunately, declaring oneself to be the victor in anything does not a “victor” make. But, if you want to declare the US the victor in Iraq, I am game! Heck, I think all Americans should loudly proclaim that the US is the victor in Iraq. And then we should never go near the place again. Likewise, I think that all losers in American Idol should declare that, in fact, they won! So, I think it is cute that you declare that you “nailed” people.

Again, the Army Regulations and the Geneva Conventions do not provide for the death penalty for people that are not protected by the Geneva Conventions, unless they are convicted by a competent tribunal, which is not any determination made in the field. But, I admire your spunk and desire to execute people on the field after being captured. Unfortunately, this isn’t the law as 1) the Geneva Conventions declare; 2) the Supreme Court and all branches of the armed forces interpret. For this reason, I have urged you, and others like you to write your congress people demanding that the US renounce the Geneva Conventions.

Posted by: S.cotus | Apr 25, 2007 6:51:30 AM

A "competent tribunal" can be 3 commissioned officers in the field. That Army Regs don't currently provide for such a procedure does not mean that they cannot be changed.

And somehow I seriously doubt that the US Supreme Court could do thing one about it . . . .

At the end of the day, the Supreme Court has neither the sword nor the purse.

Posted by: federalist | Apr 25, 2007 11:33:39 AM

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