Big Battles Yet To Come

John Walker Lindh lost his initial skirmish with government prosecutors Wednesday morning when a federal magistrate denied his lawyers' request that he be released on bail pending trial. Although there were decent arguments in favor of his pre-trial release, Lindh in the end could not escape his dubious past. The magistrate judge looked at the defendant's recent travels to the Middle East and to Southern Asia and wondered, quite reasonably and logically and earnestly, why he should bet against Lindh taking off again.

So it's Round One to prosecutors. They get to keep their man in jail in Alexandria, Va. while the lawyers sort out when his trial will occur. But don't take the ruling as a foreshadowing of things to come. In the first place, the judge who ruled against Lindh so decisively today won't be the same judge who presides over his trial. The case will be assigned a judge next week when the arraignment takes place. In the second place, the issue of bail, with its own separate legal standards, won't create any sort of legal precedent for the many substantive issues which must be decided before a jury gets involved.

In the meantime, it should tell you something about the nature of the charges against Lindh — and about the strength of the government's case — that at the last minute the feds added six more counts against the defendant based almost exclusively on the same central set of facts which generated the initial four counts against him. It also might tell you something about the government's comfort level with its own case that the Attorney General once again on Tuesday felt the need to publicly lambaste Lindh while announcing the indictment — so much so that defense attorneys argue that John Ashcroft violated Department of Justice policies on pre-trial comments.

First, the additional charges. In fairness, they may tell some of you that federal prosecutors simply found six additional counts they think they can get to stick against Lindh. That's not an unreasonable conclusion to reach, especially since government attorneys long ago announced that they would be inclined to throw the book at any defendant involved in any conceivable way with the terror attacks of Sept. 11. Besides, what are federal criminal laws for anyway if not to use against people suspected of aiding terrorists.

But what the newly-filed indictment against Lindh tells me is that the feds were and are worried that the initial charges might not stick or even be enough to ensure that Lindh would lose his request for bail. How else to explain the inclusion, in the indictment, of a charge that Lindh "did knowingly use, carry, and possess firearms, namely an AKM rifle, an PRK rifle, and at least two grenades..."?

That particular charge, not included in the initial complaint but clearly known to authorities when that complaint was drafted, obviously was designed to help the government make the case to the magistrate jdge Wednesday that Lindh, indeed, was capable of violence if released pending trial. It's a charge, incidentally, which can only succeed if jurors ultimately find that Lindh is guilty of the other charges against him.

I certainly may be wrong about all of this but I read the indictment and I see a lot of holes in the government's case. I see a lot of allegations about Lindh's ties to al Qaeda and the Taliban and even a group the government identifies as "Harakat ul-Mujahideen" but I don't see a lot of allegations involving actual criminal conduct Lindh was involved in (as opposed to criminal "status"— which may be problematic for the feds under the Constitution). For example, the feds allege that Lindh carried a rifle but they don't allege that he ever fired it. They allege that he was asked by al Qaeda if he were interested in "traveling outside Afghanistan to conduct operations against the United States and Israel" but then they have to concede that Lindh did not accept the dubious offer.

And the indictment is very ambiguous about what role, if any, Lindh may have played in the uprising which led to the death of CIA agent Johnny Micheal Spann. In fact, there is no specific allegation I could find in the indictment which suggests that Lindh was involved in the prison uprising which led to Spann's death. "Taliban detainees in the QIJ compound attacked Spann and the other employees," the indictment reads, "overpowered the guards, and armed themselves. Spann was shot and killed in the violent attack. After being wounded, Lindh retreated with other detainees to the basement area..." Maybe I'm wrong but there are several links in that chain which are missing; namely, how Lindh was wounded and whether he was one of the detainees who overpowered the guards. It seems to me that if the government had evidence to this effect, there would be like allegations in the indictment.

What does the defense say about all of this? A lot. Knowing that every hearing in this case will get a ton of media coverage, Lindh's lawyers took advantage of the opportunity of filing court papers to continue their efforts to sway potential jurors even at this early stage. In their bail request, then, they found the space to contend that "there are no allegations and no evidence that (Lindh) ever intended or attempted to harm or did harm any civilian at any time" and "there are no allegations and no evidence that he ever so much as a fired a shot, even at Northern Alliance soldiers." Would these points, even if true, have much relevance during a bail hearing? Of course not. But Team Lindh clearly is talking over the heads of prosecutors and the judge to the good folks in and around Alexandria, Virginia who ultimately will decide their client's fate.

Which brings me, finally, to the Attorney General, who also clearly is interested in ensuring that the government's side of the story gets across to as many potential jurors as possible. Tha's what brought him before the cameras a few weeks ago, when Lindh first came back to the States, and it's what brought him before the cameras again Tuesday. There is an old saw about these types of high-profile cases. The more prosecutors feel the need to state their case publicly, the less confident they are about the case they have.

The government still has an enormous emotional and tactical advantage here because of the war and America's general disdain for Lindh. And that advantage may overshadow the specific facts and law of this case. But this is easily going to be the closest and hardest fought of the current pending terror trials and it seems obvious to me that the feds know it.

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