THE BAIL HEARING

A lot more happened at John Walker Lindh's bail hearing than has been reported.

On the surface, the story was that the day following Lindh's indictment, a federal magistrate judge in the United States District Court for the Eastern District of Virginia denied his lawyers' application that their client be released on bail into the custody of his parents. What has not been analyzed, however, is what the bail hearing revealed about the defense's current strategy, the government's evidence, and the implications of the judge's ruling.

The background to the bail hearing was the indictment filed the day before against Lindh. In essence, it charged that he conspired to kill Americans, and aided terrorist organizations that have murdered Americans. Also that he violated a federal statute criminalizing the use of firearms and other "destructive devices" in certain crimes of violence.

There are several things that a bail hearing is not, from the defense perspective. It is not a proceeding in which the indictment may be attacked, evidence of innocence produced, or spellbinding jury speeches delivered. If the defense believes the indictment suffers from legal infirmity, it may make a motion to dismiss it. If the defense believes that there is evidence of its client's innocence, it can produce it at the trial. If the defense believes that there is something to be said about the government's failure of proof, it can argue that to the jury in summation. However, none of this is appropriate at a bail hearing, whose only purpose is to determine whether the defendant is to be freed pending trial.

Whether or not he is, depends on the answers to only two questions: (1) is the defendant a danger to the community, or (2) is he a flight risk?

The defense argued that despite the factual allegations of the indictment, Lindh is loyal to the United States, never had anything to do with terrorists, and fought only against the Northern Alliance. These assertions have little if anything to do with Lindh's application for bail — with whether he is a danger or a flight risk. What they are is a preview of Lindh's defense, if he goes to trial. (I predict that he won't, but that's for another essay). Lindh's lawyers seem to be telegraphing a defense which will consist of trying to show that Lindh, in effect, "didn't know the gun was loaded." That he was just a poor, itinerant scholar wandering the world in search of Truth when somehow he became caught up in the swirl of armed hostilities between persons and organizations with whom he had no relationship. For this absurd contrivance to work with a jury, one has to believe that the government won't prove any of the overt acts charged in the indictment; to wit: Lindh told HUM he wanted to fight with the Taliban in Afghanistan; he crossed from Pakistan into Afghanistan for that purpose; he presented a letter of introduction from HUM to the Taliban telling them that he, an American, wanted to fight for them; he agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans; he traveled to, and stayed in, a bin Laden guest house; he trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States; he met personally with bin Laden, receiving the terrorist's thanks for having joined jihad; he met with a senior al-Qaeda to discuss where he would fight; he swore allegiance to jihad; he traveled to Kabul, where he was issued a weapon; he marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi; he fought Northern Alliance troops; for four or five months he was under arms; he remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden; he remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda; he retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison; he was interviewed by CIA agents, who were seeking to identify al-Qaeda members among the prisoners; he was in the prison when Taliban detainees attacked Spann and his colleague, overpowered the guards, armed themselves, and killed Spann; he retreated, though wounded, with other detainees to a basement; he remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out.

Perhaps Lindh's defense lawyers can somehow convince a jury that not one of these overt acts occurred. But if they can't, there is no defense — not the one floated by defense counsel at the bail hearing, nor any other.

This is all the more so when we examine the evidence presented by the government (and the tone in which it was presented) at the bail hearing — evidence nominally submitted on the bail question of danger and flight, but telegraphing some of what the government can offer at a trial.

One of the prosecutors didn't pussyfoot around: "John Walker Lindh is a committed terrorist . . . . He not only talked the talk, but he walked the walk, carrying hand grenades and firearms and referring to his al Qaeda brothers." In addition, the government cited much of what we already know about Lindh's attitude (e.g., his approval of the Cole bombing), which the prosecutors appropriately characterized as demonstrating "a pattern of hostility toward the United States." More important, the government buttressed this pattern with heretofore unseen correspondence from Lindh to his mother: the American government bombed its own African embassies; "what has America ever done for anybody?"; it was an American official who encouraged Saddam Hussein to invade Kuwait; the Pentagon was a good target. Doubtless the government possesses even more correspondence that demonstrates Lindh's animus toward his own country — an animus that will go far to explain his motivation for the many overt acts with which he is charged.

This evidence, unlike the defense's smoke and mirrors, did relate to the only two questions before the judge at the bail hearing. Clearly, the government was attempting to show that Lindh was dangerous and did pose a flight risk.

The judge listened for some forty-five minutes and then immediately rejected Lindh's request for bail in what The New York Times characterized as "a swift and firm ruling." Lindh will remain incarcerated pending trial, if there is one.

The judge's comments are instructive. He rejected out-of-hand the defense assertion that Lindh was a loyal American. Fox News Channel quoted the judge as saying that while "it may be argued by the defense that the defendant is a loyal American . . . the evidence before the court belies that assumption."

The judge observed that with Lindh facing up to three life sentences plus an additional ninety years, he had every incentive to flee, and there were no conditions he could impose that would guarantee Lindh's appearance for trial.

Giving short shrift to the defense's contention that if bail were granted Lindh would not flee because he'd have a supportive family, the judge ruled: "I find he has no social or economic stability, only a three-week stint of warehouse work some years ago . . . [and] had been out of the country from February 2000 until January 23 [2002] when he was brought here, and virtually no contact with his parents for two years. These are not the family ties that can rebut the presumption in favor of the government."

The judge also ruled that Lindh did, indeed, pose a danger to the community, given the charges against him. Especially Count Ten —"using and carrying a firearm and destructive device during crimes of violence" — which, according to the judge, plainly argued in favor of the government's effort to detain Lindh without bail.

One of the judge's remarks and rulings in particular do not portend well for Lindh should he go to trial. If a judge at a mere bail application — hearing just the little evidence offered by the government to counter the defense's empty assertion that Lindh was "a loyal American" — could quickly conclude and rule that such an "assumption" was erroneous, we can only imagine a jury's reaction when it is inundated with the proof available to the government, showing just how disloyal Lindh actually was. If "loyal American" is to be the centerpiece of Lindh's defense, it is doomed to fail and he will be convicted — for if even some of the charged overt acts can be proved, manifestly Lindh was anything but a "loyal American."

Lindh's defense team can't fail to know this, so, for the moment they are obfuscating while trying to get some leverage for the inevitable plea bargain negotiations with the prosecutors. They will try to suppress Lindh's statements to CNN (Does a reporter have to give a captured enemy prisoner Miranda warnings?), as well as his voluntary statements to the FBI. After they lose their suppression motion, they will bargain.

The dance has begun. In his remarks outside the courtroom, Lindh's lead lawyer has already gently chastised Attorney General John Ashcroft for his extra-judicial remarks. Lindh's lawyer also complained that by indicting his client, the government had "brought up the cannon to shoot the mouse."

Wrong metaphor, Mr. Brosnihan. Actually, the government, not inappropriately, has brought up the cannon to shoot the rat.