THE CONVENTIONAL WISDOM

 

 

Newsweek magazine's April 15, 2002, issue has published an article by Steven Brill entitled "End of Their Rope," carrying the subtitle "The Feds threw the book at John Walker Lindh, whetting the nation's appetite for vengeance. Too bad the evidence is so weak." Putting aside that the Justice Department has, unfortunately, not thrown the book at the American Taliban — he should have been indicted for treason — Brill's analysis reveals how little he understands about the law of conspiracy that Lindh has been charged with violating, and how much Brill has ignored the facts of the Taliban John case. If this were one person's error, there would be little reason to reproach Mr. Brill. However, because of his reputation in the legal community, because the article appears in Newsweek and thus with its imprimatur, and because Mr. Brill's lack of confidence in the Lindh prosecution is apparently shared by many others, lawyers and laypersons alike, it's necessary to identify and explain his mistakes.

 

Brill holds that "If pretrial hearings and the court papers exchanged so far are any indication, 'American Taliban' John Walker Lindh seems destined to join a long roster of infamous defendants in famous cases who prove that the American legal system often won't give the bad guys the punishment most people think they deserve." He grounds this opinion on an incredibly superficial statement of the law of conspiracy — "To get a conviction . . . prosecutors would at least have to show that Lindh agreed with someone, somewhere and somehow to kill Americans or to aid Al Qaeda" — and on what Brill characterizes as a lack of evidence — "between slim and none" — in the hands of federal prosecutors

 

Let's begin with the law of conspiracy, which is not at all complicated or difficult to understand. To prove a federal conspiracy, the prosecution must show two things: (1) the defendant agreed with even one other person to commit a federal crime, and (2) anyone who so agreed, then committed any act — even a perfectly legal one — that furthered their agreement. For example, Bill and Al, over coffee at Starbucks, agree to hold up the federally insured bank across the street the next day, and then make their escape in an automobile. Bill then purchases a car — a perfectly legal act, but one in furtherance of the conspiracy between the two of them to rob the bank. The crime is then complete, without anything else happening.

 

Thus, contrary to Brill's snide "someone, somewhere and somehow" assertion, all that Lindh's prosecutors have to prove is either that others agreed to commit a federal crime and Lindh then agreed to participate, or that Lindh agreed with at least one other person to commit a federal crime. (Brill's "somewhere" requirement is devoid of meaning because there's always a "somewhere" somewhere. Equally empty is his "somehow" requirement, because all that's required is an agreement, and that's surely "somehow").

 

What, then, according to Brill, has Lindh been charged with agreeing to do? "The government' case, such as it is, is twofold: First, Lindh was caught fighting for the Taliban. Second, he allegedly confessed to FBI agents in Afghanistan after he was caught that he knowingly enlisted in Al Qaeda's terror campaign against America." Conveniently, Brill ignores the obvious question of how Lindh came to be "fighting for the Tailban." Could it be that Lindh agreed to fight for them? As to Lindh's confession that he joined (agreed?) an anti-American terror campaign, Brill impugns the admissibility of Taliban John's statements (a legal question yet to be decided). Thus, what Brill has done in these two sentences is to create a straw man and then blow him down — and thus avoid confronting the actual charges against Lindh.

 

Of the ten counts in the indictment against Lindh, five are for conspiracy. Count One charges that Lindh joined an existing terrorist conspiracy to murder Americans (anywhere in the world) and committed overt acts (one is enough) in furtherance of that conspiracy (even if the act itself was legal). If the government can prove that there was such a conspiracy (hardly a difficult task), that Lindh joined it (the discovery motion judge recently asked rhetorically why Lindh was in Afghanistan), and that he committed even one overt act in furtherance of that conspiracy, the jury should convict.

 

Count Two charges a second conspiracy: an agreement with persons, some known and others unknown, to provide material support and resources (defined in 18 United States Code Section 2339A(b)) to the foreign terrorist organization, HUM (which Brill doesn't even mention). If the government can prove that HUM was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should convict.

 

Count Four tracks Count Two. Whereas Count Two charges Lindh with a conspiracy to provide material support and resources to HUM, Count Four charges the same kind of conspiracy with al-Qaeda. The overt acts charged are the same. The same proof that would be used to support Count Two would suffice for Count Four, so that if the government proved that al-Qaeda was a terrorist organization, that Lindh agreed with anyone to provide material support and resources to it, and that Lindh, or any other conspirator, committed even one of the overt acts charged in furtherance of that conspiracy, the jury should similarly convict.

 

Count Six — "Conspiracy to Contribute Services to al-Qaeda" charges that Lindh conspired with others to provide services to al-Qaeda, and that he did so himself. For proof of the conspiracy, the government will have to prove that al-Qaeda was a terrorist organization, that Lindh agreed with others to provide it services between roughly May and December 2001, and that he, or any other conspirator, committed any overt act charged in furtherance of the agreement

 

Count Eight — "Conspiracy to Supply Services to the Taliban" — is essentially the same as Count Six, applying to the Taliban rather than to al-Qaeda. The proof analysis is the same.

 

In each of these counts, the word "conspiracy" is synonymous with the term "agreement." In other words, the government is charging that Lindh agreed with an existing terrorist organization to kill Americans (e.g., at the prison uprising), that he agreed with anyone to supply material support and resources to HUM and/or al-Qaeda, and that he agreed with anyone to supply services to HUM and/or al-Qaeda.

 

This leaves us to consider only the overt acts charged against Lindh, allegedly committed in furtherance of these five discrete conspiracies.

 

Depending on how the indictment is read (because some charges imply more than a single act), it pleads more than a score of overt acts:

 

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;

 

He was under arms for four or five months;

 

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.

Not only has Brill ignored all this in his Newsweek article, with equal superficiality he has also erroneously labeled the indictment's other five counts with the meaningless characterization of "the lesser charge of aiding the enemy."

 

Here are those additional counts.

 

Count Three is essentially the same count as Count Two, but with one important difference. Whereas Count Two charged a conspiracy, Count Three charges Lindh as a principal in providing, or attempting to provide, material support and resources to HUM. For this, no agreement is necessary. Proof of an overt act (see above) providing material support and resources should result in a conviction.

 

Count Five is essentially the same as Count Three. It charges Lindh with being a principal in providing, or attempting to provide, material support and resources not to HUM as in Count Three, but rather to al-Qaeda. Here, again, no proof of an agreement is necessary. If the government proves that Lindh, by any of the overt acts charged, provided or attempted to provide the statutorily defined "material support and resources" to al-Qaeda, the jury should convict.

 

Counts Seven and Nine, respectively, charge Lindh as a principal in providing services to al-Qaeda and the Taliban. Yet, again, no agreement is necessary.

 

Count Ten — "Using, Carrying & Possessing Firearms and Destructive Devices During Crimes of Violence" — is an interesting charge. Under federal law, it is a crime to "use, carry and possess" items defined as "destructive devices" either during, in relation to, and in furtherance of, certain crimes of violence for which one could be prosecuted in a United States Court. Certainly, as the factual predicate allegations of the indictment charge, Lindh used, carried and possessed two types of defined "destructive devices: rifles and grenades. It is charged that doing so was "during, in relation to, and in furtherance of crimes of violence" for which he could be — indeed, he is being — charged in a United States court, to wit: Counts One and Counts Four through Nine inclusive. Although there is not much case law interpreting this statute, it seems pretty clear what the government has to prove: using, carrying, and possession of destructive devices for use in certain crimes. This brings us back to the core of each of the government's first nine counts: the overt acts.

 

Because it will be easy for the government to prove that HUM and al-Qaeda are terrorist organizations, that there was a conspiracy among and between those organizations and others, and that Lindh was connected to both organizations, his guilt or innocence as a principal, aider and abettor, and/or conspirator, will depend on whether he — or, in the conspiracies, any other conspirator — committed an overt act. The government has charged over a score of those acts, and if even one is proved, Lindh ought to be convicted of virtually, if not actually, everything with which he is charged.

 

Yet Newsweek's Steven Brill — other than grudgingly opining that the non-existent "lesser charge of aiding the Taliban . . . does seem strong" — thinks otherwise. As do too many other uninformed people. If Lindh doesn't take a plea — I have predicted, from the beginning, that he will — when the jury goes out on Tailban John, it will also go out also on Mr. Brill's and his fellow naysayers' erroneous prognostications.