THE NOOSE TIGHTENS

If there has been doubt in anyone's mind about the nature of the government's principal case against John Walker Lindh, last week's court filing by the United States Attorney should have dispelled it.

To understand the significance of what the government's motion papers said, it's necessary to remind ourselves about what "conspiracy" means in federal criminal law, and then about what the indictment charges Lindh with having done.

Conspiracy is proved by evidence showing an agreement (which can tacit, so long as it is clear) to do something illegal (e.g., killing Americans in general, and/or CIA operative Mike Spann in particular), and any act done by any member of the conspiracy (even if the defendant had no knowledge) in furtherance of the conspiracy (e.g., fighting). The act in furtherance of the conspiracy can even be something wholly legal (e.g., marching).

For now, let's focus just on the first count of the indictment.

Count One, "Conspiracy to Murder United States Nationals," incorporates all the facts alleged earlier in the indictment ¾ the most relevant ones being those describing Lindh's connection to the Spann murder, and Lindh's training and fighting with terrorists. On the basis of those facts, the indictment alleges that from May 2001 through December 2001 Lindh conspired to kill Americans, both civilian and military personnel. Remember that conspiracy requires merely an agreement and an overt act. As to the former, paragraphs 3 and 4 of the indictment allege that "members and associates of al Qaeda would commit terrorist acts and kill Americans around the world . . ." and "members and associates of al Qaeda and the Taliban would violently oppose and kill American military personnel and other United States Government employees serving in Afghanistan after the September 11 attacks." In other words, the indictment charges that there was a conspiracy of people and entities, whom Lindh joined, to commit serious crimes against Americans. What, then, were the overt acts - proof of any one being sufficient to convict - by either Lindh himself or any other member of the conspiracy, in furtherance of that conspiracy?

Depending on how one reads the indictment, it pleads at least twenty-one 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; 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.

In sum, the indictment's Count One charges that Lindh joined a terrorist conspiracy to murder Americans, and he and/or others committed overt acts in furtherance of that conspiracy. Almost immediately after the indictment was filed, and continuing even now, many people - not the least of whom have been the Lindh defense team - scoffed at Count One, contending that when the showdown came at trial, the government couldn't prove Lindh conspired to kill Americans, let alone Mike Spann. In several earlier articles, I have scoffed at the scoffers because I knew three things. One was the law of conspiracy, requiring only an agreement to commit an unlawful act and any act in furtherance of that agreement. Second, I knew that the government would not have gone out on the Count One limb unless the prosecutors had enough evidence to go to a jury on both the agreement and the overt act. Third, and most important, I understood - whereas the defense didn't, or wouldn't - the theory of the government's case. It was revealed to the public in last week's motion papers. As the San Francisco Chronicle put it: "For the first time, federal prosecutors explicitly accused John Walker Lindh . . . of being partly responsible for the slaying of CIA agent Johnny "Mike" Spann during an Afghan prison uprising. . . ."

Against the backdrop of the Count One conspiracy charge, the government stated the simple truth of the case: "By well-established conspiracy law, the murder of Mr. Spann . . . is attributable to all conspirators, and that is true whether they fired guns themselves or even knew that the uprising ould take place." The United States Attorneys added that: "The events of September 11 bear directly on this prosecution: The events of September 11 - and Lindh's clear understanding of who was behind it - prove that Lindh knew he was in league with a group of individuals dedicated to the murder of Americans."

While the Lindh defense team obfuscates about their client never having killed an American, the government keeps its eye on the ball: the law of federal criminal conspiracy. Did Lindh conspire - i.e., agree - with terrorists to harm Americans, which would include Mike Spann? If so, did anyone commit any act to further that conspiracy - e.g., kill Spann - whether or not Lindh knew about it? Because the answers to both questions appear to be "yes," don't be surprised that once Lindh's lawyers lose their motion to suppress his statements, we see a plea bargain.