Lindh pleaded guilty; real terrorist won't.

The law, lawyers, and the court.
July 16 2002 6:32 PM

The Pushover

Lindh pleaded guilty because he understands the system; real terrorists won't because they don't.

John Walker Lindh: Not the face of a terrorist
John Walker Lindh: Not the face of a terrorist

Today's editorial pages are giddy with delight at the plea agreement reached Tuesday in the John Walker Lindh case. Lindh agreed to plead guilty to two charges—aiding the Taliban and carrying explosives while doing so. The bargain was good for everyone. The government dropped all the serious charges, including its claim that Lindh had anything to do with the death of Mike Spann, the CIA officer killed in the prison uprising at Mazar-e-Sharif on Nov. 25. Lindh gets more jail time than the flimsy evidence against him warranted, and the government is spared an embarrassing trial and ugly disclosures about Lindh's treatment in captivity. Lindh goes to jail, and the feds get a government witness. Everyone from the New York Times to the government lawyers view this deal as a vindication of the U.S. criminal justice system: We don't need military tribunals! We don't need indefinite detention of enemy combatants! Bring on the terror trials! The system worked.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Does it occur to anyone that this conclusion is perverse? That the only reason the system "worked" in the John Walker Lindh case was precisely because he is not a terrorist, and this was not a terror trial? The plea agreement reached in the Lindh case proves only what we already knew: that our criminal justice system works well when dealing with rational actors who understand the rules.

Had Lindh indeed been the hardened al-Qaida member John Ashcroft once promised to convict, there would have been no deal yesterday. Had the government believed that Lindh committed the serious crimes listed in the indictment—including conspiracy to kill Americans abroad and consorting with al-Qaida—the case would never have been settled. The case was settled because the government knew Lindh was principally a misguided kid swept up by forces he didn't understand and not a determined suicide bomber spearheading attacks on innocent Americans.

Why was Lindh allowed access to an attorney, while fellow citizen Jose Padilla is not? Because Lindh is not a terrorist bent on passing messages back to al-Qaida. Why was Lindh's lawyer granted judicial permission to submit written questions to al-Qaida members currently detained in Guantanamo? Because Lindh never had any interest in encouraging or planning terror attacks against America. Why is the government even contemplating sending Lindh to a medium-security prison in California, where he'll be allowed to mingle with other prisoners, visit with his family, and write his book (all proceeds to go directly to the U.S. government)? Because no one believes he'll be spending the next 20 years tapping out messages to Osama Bin Laden from the pipe under his sink.

And why did Lindh ultimately strike a deal with prosecutors, even though his defense team knew there were serious doubts about the strength of the government case? Because Lindh, while inclining toward the grandiose/delusional, is nevertheless a rational actor, with a rational actor's natural self-interest in the shortest jail term for which he can bargain.

The other terror cases currently pending are nothing at all like the Lindh trial. Zacarias Moussaoui, Richard Reid, and Jose Padilla stand accused of being bona fide terrorists who might use any means available to access confidential security information and pass it along to al-Qaida. They would use the discovery process to leak secrets. They would use their attorneys to pass messages. The normal ebb and flow of a trial cannot lead these men to a mutually beneficial settlement with the government because they cannot have normal trials. They will never enter into plea agreements to testify at any future trials of their al-Qaida buddies, as Lindh just did. These men are not rational actors willing to do anything to avoid rotting in jail or sparing themselves lethal injection; they have each proved that they would like nothing better than to die as martyrs.

That is why the U.S. criminal justice system is still inadequate to prosecute terrorists. That is why Padilla and Yaser Esam Hamdi are in military brigs without any hope of a trial and why Zacarias Moussaoui isn't on the phone today with James Brosnahan, Lindh's lawyer, begging him to negotiate a sweetheart deal for him, too. The U.S. justice system is unparalleled when it comes to prosecuting a punk kid who hotwired a car; and that's essentially what Lindh did—he just did it in Afghanistan, using grenades. But let's be realistic about its limitations. This was not "an important victory for the people of America in the battle against terrorism," as U.S. Attorney and lead prosecutor Paul J. McNulty announced outside the courthouse yesterday. It was a rational result in the only rational terror trial we're going to see.