So in a case destined to be scintillating and dramatic, Wednesday's reading of the formal charges against Lindh ought to be fairly tame. In fact, it should be among the tamest and shortest and least contentious court appearances we are likely to see from this particular cast of characters. But that's OK. Even before Wednesday's official curtain raiser, there already are a handful of fascinating legal strategies being played out in one form or another.
For example, remember all those e-mail messages we heard about and read last week, the ones between John Walker Lindh and his parents, the ones which portrayed Lindh as alternately snotty, rude, ungrateful, jerky, haughty and pompous? If we never hear about them again in court, we'll know that government attorneys believed they were legally relevant only to the extent they helped establish that Lindh was a flight risk and thus unsuitable to be released pending trial. And for that purpose, the e-mails clearly did the trick. It took the magistrate judge only about an hour or so to become convinced that releasing Lindh to his parents' control wasn't a risk he legitimately could take.
But if we do continue to hear about those e-mails from federal prosecutors, we'll know that the government is trying to have its cake and eat it too when it comes to their case against Lindh. We'll know, or at least be able to make a good argument, that federal prosecutors are trying to portray Lindh as a traitor to his country even as they studiously avoid treason charges against him; that they are trying to soften the ground with potential jurors and turn those potential jurors against the defendant even more so than they probably are already by focusing upon Lindh's anti-American sentiments.
Here's how this particular strategy has played out so far. In the court fight last week on bail, government prosecutors filed a brief that alleged among other things that "Lindh abandoned his country and his community." How? The government says he "left the United States at the beginning of February 2000 and, despite repeated entreaties from his family to come home, he refused to do so." And the feds say that Lindh wrote to his parents that he had "wasted about 9 months in America" after an earlier trip to Yemen. When his folks asked him again to come home, this time in April 2001, Lindh allegedly responded coolly that he had no intention of doing so "until I finish what I came here for," meaning, at the time, his Islamic studies and perhaps moe nefarious activities.
Likewise, the government spent some time and space in its bail brief informing the judge about how, in words of federal prosecutors, Lindh "repeatedly expressed what can only be termed a hostility toward his country of birth and citizenship." How? First, the government quotes Lindh as telling his parents that the East African bombings "seem far more likely to have been carried out by the American government than by any Muslims." Then, the feds quote Lindh in another memo to mom in which he tells he doesn't "know what her big attachement (sic in original) to America is all about. What has America ever done for anybody?"
These statements by Lindh, if true, are odious, especially in light of the September terror attacks. And they say about as much about Lindh's parents as they do about him. But expressing dislike for America in and of itself is not a crime. Nor, last time I checked, was expressing cyber support for America's enemies. Nor is refusing to come back home when your parents tell you to. I have a hard time figuring how any of these statements, in fact, would be part of the burden prosecutors must meet in establishing the elements of any of the terror charges against Lindh. That's why I'm not sure whether we'll hear about them again.
Is e-mailing your mother about looking "upon American society with pity" the same as providing material support to terrorists? Is it necessary to prove that Lindh was part of a conspiracy to murder a US national? It certainly isn't a necessary component of a charge that Lindh was carrying a weapon when he committed a crime of violence. About the only relevance I can see from these e-mails is that they suggest that Lindh had a frame of mind which would make him inclined to sign up with anti-American forces. But surely the government has other, better evidence to prove that claim and if it doesn't, it's in big trouble in this case.
We'll have to wait a few months to see whether the e-mails return to the limelight as the case moves closer to trial. But I hope they don't. The government's case against Lindh ought to stand or fall upon what the defendant did or did not do not upon what he said or did not say. If the feds want Lindh to face the music for his anti-American views, they ought to bite the bullet and bring actual treason charges against him. But since they haven't, they ought to be careful about how they use these particular words against him.
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