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July 30, 2007

LA Times calls for clemency for American Taliban

If nothing else, the Scooter Libby commutation has energized various folks to call upon President Bush to exercise his clemency powers in a number of other cases.  This recent op-ed from the Los Angeles Times, for example, focuses attention on the case of John Walker Lindh, the so-called "American Taliban."  Here are excerpts:

Lindh, who converted to Islam as a teenager, joined the Taliban before Sept. 11, not after; he did so to fight the Northern Alliance, not the United States. Lindh never took up arms against this country. He never engaged in terrorism; indeed, his commitment to Islam leads him to oppose the targeting of civilians.

John Walker Lindh broke the law. He pleaded guilty to the one crime of which he was guilty -- aiding the Taliban -- and to carrying a gun and hand grenades in the service of that regime's war against the Northern Alliance.  For that, he deserved to go to prison, and he should not receive a pardon.  He is a felon, and his record should never be cleared.

The issue, then, is not Lindh's guilt but his sentence.  He was ordered to spend 20 years in prison, far longer than comparably situated defendants.  Maher Mofeid Hawash pleaded guilty to violating the same law, and, after he agreed to cooperate, the government recommended that he serve seven to 10 years in prison.  Yaser Esam Hamdi, who fought with Lindh in the Taliban military, was released back to Saudi Arabia in 2004, having spent less than four years in custody. David Hicks, an Australian, pleaded guilty to terror charges before a military commission and was sentenced to nine months.  Of all the suspects rounded up across the world in the administration's war on terror, only shoe bomber Richard Reid, who actively attempted to destroy a plane in flight, is serving a longer sentence than Lindh....

The concept of mercy spans testaments and faiths, and any system of justice requires the embrace of mercy for leavening and legitimacy. In this case, justice has been served by Lindh's time in prison.  Now Bush is uniquely positioned to grant mercy, for while many will long argue over the effectiveness of his war on terror, none question his commitment to it.  By giving Lindh a commutation, Bush could prove that his war is, as he often and properly asserts, not against Islam but against those who seek to harm America.  Lindh never sought to harm his country; he has served long enough.  Bush should send him home.

As detailed in this post, I can name a number of other defendants that would seem to merit clemency attention as much as Mr. Lindh.  Nevertheless, I am always pleased to see a major media outlet making a stink about a perceived example of excessive punishment.

July 30, 2007 at 12:29 PM | Permalink


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Doug, are you saying that Lindh deserves mercy?

Posted by: federalist | Jul 30, 2007 12:57:59 PM

I think just about everyone deserves some kind of mercy unless they are truly evil. I do not know enough about Lindh personally to judge him, though I do sense that the length of his sentence was driven in part by the extreme hostility to all things middle-eastern at the time.

Posted by: Doug B. | Jul 30, 2007 6:26:31 PM

Doug, in a quainter time, he probably would have been executed on the spot.

Posted by: federalist | Jul 30, 2007 6:28:50 PM

"Doug, in a quainter time, he probably would have been executed on the spot."

Would have been illegal, of course, but federalists don't seem much to care these days. Even in the Civil War, a far quainter time that this, soldiers in open rebellion against the United States were not "executed on the spot." Prior to the war, John Brown, also in open rebellion, was not "executed on the spot" but tried for treason.

I think federalist does not know what he is talking about.

Posted by: David in NY | Jul 31, 2007 11:49:32 AM

Given that Lindh was violating the laws of war and he was an American fighting the US, I think that he likely would have suffered the same fate as German POWs who were wearing American uniforms at the Battle of the Bulge, i.e., summary execution.

Posted by: federalist | Jul 31, 2007 11:54:29 AM

Federalist doesn't really argue law. But he argues a greater truth. Well, something truthie. And his views probably represent the thoughts of many non-lawyers. (And therefore, don't matter.).

While it would have been illegal to execute Lindh on the spot, and whoever did it would face probably about 20 years in jail for doing so (well, probably about seven, or zero depending on the results of pretrial processing) I don't think it is relevant whether he is "lucky" or not to have been killed.

There are some that argue that cops can and should beat up people in the inner-city. After all, the people they beat up probably have done something wrong, and a good beating is the only way to get poor people to respect the law. In fact, from time to time it comes out in depositions that cops tell people "You are lucky we didn't beat you up some more."

But, that doesn't mean that our substantive law should be altered because some beat cop handed out a little "stick time" according to the “law of the street.” In fact, it is not.

Posted by: S.cotus | Jul 31, 2007 3:49:46 PM

The point that the Los Angeles Times gets, and federalist does not, is that, Lindh in the tradition of people like the American who went off to fight in the Spanish Civil War, signed up to join a fight to which his country was not a party. (Or, to use an example the founders would have been more familiar with, to join the French revolution.)

The criminal law shouldn't exact high punishments for failing to predict that, in the middle of a foreign civil war, your country ends up taking the side that you didn't join up with, based upon events that the White House didn't predict either despite having better warning.

Once you are in, extricating yourself from membership in a military force isn't easy, nor is it highly culpable.

The plea for clemency is surely hopeless, at least in this administration, but the grounds for the plea are real.

Posted by: ohwilleke | Jul 31, 2007 4:46:03 PM

Ohwilleke, Lindh participated in a riot in which US civilian was killed. In any event, I would rather die than take up arms against my country. The nation has a right to expect that from each of its citizens. There are fates worse than death--thus, we had a right to expect that Lindh would have given his life before betraying our nation. He chose otherwise and must now suffer the consequences. Lindh is lucky--he deserved to die like the traitor that he is.

Posted by: federalist | Jul 31, 2007 4:59:45 PM

Oh, and perhaps all you enlightened folks can make your arguments to Mrs. Spann.

Posted by: federalist | Jul 31, 2007 5:00:32 PM

"Ohwilleke, Lindh participated in a riot in which US civilian was killed. In any event, I would rather die than take up arms against my country. The nation has a right to expect that from each of its citizens. There are fates worse than death--thus, we had a right to expect that Lindh would have given his life before betraying our nation. He chose otherwise and must now suffer the consequences. Lindh is lucky--he deserved to die like the traitor that he is."

Incoherent nonsense. The question -- which federalist her[him]self raised -- is whether everyone who takes up arms against his country has traditionally in this country been subject to summary execution. The answer, as I showed above, is unequivocally no.

Posted by: David in NY | Jul 31, 2007 5:39:12 PM

Uh, David, Lindh was violating the rules of war, operating with terrorists, no uniform etc. He likely would have been treated in the same manner as those German spies at the Battle of the Bulge, i.e., shot at dawn.

My latest post was to answer ohwilleke's defense of Lindh.

Posted by: federalist | Jul 31, 2007 6:22:13 PM

Lindh wans’t convicted of murdering Spann. Spann’s status under the GC was unclear. If Lindh was fighting with the Taliban against the US and Spann was genuinely a solider, then like Lindh might have had combat immunity. It is unclear exactly whether Lindh was taking up arms against the US or not, and the circumstances that Spann died are unclear. Until 9/11, the Taliban wasn’t exactly the US’s enemy.

Whether the Taliban are entitled to GC protections has been hotly debated within and without the executive. Those who took the position that they were covered were eventually expelled or “resigned” (i.e. Colin Powell). But, the administration did settle on treating the Taliban “as if” they were covered by the GC. http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html Some people would argue that this is tantamount to treason, as they argue that the should have just slaughtered everyone (and the livestock) in that country to set an example.

One of the problems with Federalist’s argument, is that while he talks incessantly about the “rules of war” he never actually provides specific citations, so he relies on little tidbits he picked up like the “lack of a uniform” (which doesn’t mean, that someone isn’t in a militia, nor does it mean that someone is protected by GCIII). So for example, under GC3, Art. IV(a)(1) being a member of “armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces” are treated covered by it (in theory everyone is covered by the GCIII until some facts appear that make them not covered). (3) makes it clear that recognition by the detaining power doesn’t exclude people. The only gray areas are “militias” (usually “resistance” movements) which would come under GCIII’s terms by virtue of their behavior (which includes wearing the uniform). I think the administration’s biggest mistake was not withdrawing from all the Geneva Conventions. Sure, this might put some of our troops at risk, but it would truly make people fear us.

Posted by: S.cotus | Jul 31, 2007 9:25:16 PM

When the issue is clemency, S.cotus, who cares what Lindh was convicted of? As you, a lawyer, know, pleas happen all the time, and certainly a person considering clemency is not, and should not be, bound by the four corners of a plea. Facts are facts, though a court has not found them. I know that, along with technical issues about duress defenses under Indiana law, escapes you, but try hard, maybe you can understand.

The "lack of uniform" is shorthand for wearing identifiable insignia showing that a person is a member of the armed forces/militia. The reason, S.cotus, that we have that rule, is so that people cannot feign being civilians, which, of course, invites indiscriminate attacks on civilians.

By the way, adherence to the GC didn't help Americans captured by the Taliban or Al-Qaeda terrorists in Afghanistan.

Posted by: federalist | Aug 1, 2007 7:45:43 AM

Federalist, First of all, nobody is more against the Geneva Conventions then myself. [sarcasm] Sure, they might protect our troops, but in this day and age, our military is not made up of draftees. Our troops know what they are getting into. They also tend to be from poorer families. Therefore, there is little need to even pretend to protect them. [/sarcasm] But, still, the administration did not withdraw from the GC. It has withdrawn from other treaties, but because they don’t really care about national security, they stick to the antiquated, anti-American treaty. Some would say that this is a form of treason. I would not.

Since the administration has decided to go down this road, the GC does not require reciprocity. The high contracting parties are bound to it, no matter how their soldiers are treated. The remedy is withdrawal from it. The administration has chosen not to withdraw.

Next, I cited the applicable provisions of the GC. One only needs to inquire as to whether someone is property attired or regularly drilled, if they are not part of a contracting power’s army. The Talliban (even after it lost the war) was the government of Afghanistan, and Afghanistan was a high contracting party. Other militias, resistance movements, etc. might require the “uniform” analysis. So, when you say that “we have this rule” we simply do not.

Let me paste the text for you, because you really don’t seem to have read it, despite having been presented with specific citations:

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(There are three other categories, but they would only be of interest to people that actually need to deal with these issues.)

The point is – and look at the bolded text – that an individual need only fall under ONE category. #1 is the “Easiest” to resolve (but sometimes requires some factual determinations). #2 is where your “uniform” analysis comes in.

But, there is absolutely no requirement in GC3 that the armed forces of a contracting party wear a uniform. These are different sections. This is the analysis applied by the DoD (though the White House later took the position that Taliban members would be treated “just like” they were under the GC), and proposed by Colin Powell. This might not apply to AQ member, but the analysis there is a little more nuanced, and irrelevant to Lindh.

If you want to help the troops, bring them home. Claiming that torturing people will somehow help them probably isn’t too effective. Or, at least be honest with them, and tell them that the US no longer is a party to any of the Geneva Conventions, so they can know what they are getting into.

Posted by: S.cotus | Aug 1, 2007 12:10:54 PM

S.cotus. The uniform is shorthand for wearing distinctive signs. Thus #2 is out. #3 is out because Lindh wasnt a member of any regular armed forces. #1 was only designed to pick up irregulars/auxilaries becoming a part of "armed forces". That's not Lindh either.

Try again.

Posted by: federalist | Aug 1, 2007 1:02:25 PM

If Lindh was fighting with the Talliban, or a member of the Talliban, he was a member of a “regular armed forces.” Moreover, in order to exclude him from the protections of the GC, he would have had to have been determined not to have come under any of those categories. (As previous administrations did, but most people agree with the Bush I administration was a bunch of dangerous liberals.) But, in general, I agree with you: we owe it to our troops to renounce the Geneva conventions. Those that disagree with me don't support our troops.

Posted by: S.cotus | Aug 1, 2007 2:12:40 PM

Lindh fought alongside al Qaeda and was engaged in combat, something which puts him on a par with Manfred Pernass,

He cannot claim status as a member of regular armed forces by way of the Taliban.

While you're checking on your rules of warfare, check on the duress defense in Indiana.

Posted by: federalist | Aug 2, 2007 11:32:55 AM

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