Putting Mouths In Gear Before Brains

A fan arrives with a flower arrangement at the public memorial service for Michael Jackson Tuesday, July 7, 2009, in Los Angeles. (AP Photo/Nick Ut) AP Photo/Nick Ut

Attorney Andrew Cohen analyzes legal stories and issues for CBSNews.com and CBS News.

For people who did such a reasonable thing over the weekend, compromising their way to a plea deal in the John Walker Lindh case, some of the lawyers and family members involved sure did say some unfortunate things in the post-deal media free-for-all that followed.

It makes you wonder whether all their good sense and discretion was used up last weekend negotiating the deal, leaving their brains on auto-pilot or worse for the press conferences and talk-show appearances they knew would be coming.

How else do you explain Frank Lindh, the defendant's father, having the temerity Monday to compare his son's plight to that of Nelson Mandela, the Nobel-prize-winning hero of South Africa?

Mandela was unjustly sent to jail because he stood up against Apartheid. Lindh was sent to prison — and will remain there through his own guilty plea until his late 30s — because he couldn't stand up to the Taliban and wouldn't stand up for his own country after it had been slugged in the belly on Sept. 11.

I'm sure Frank Lindh was delighted that his son avoided a life sentence but the comparison was as inappropriate as the deal itself was sensible.

Somewhat less jarring but by no means insightful was the statement by U.S. Attorney Paul McNulty, who told the world that Lindh's negotiated sentence "sends a very strong message to anyone who would be at all tempted to turn their backs on the United States."

I don't know what kind of message the deal sent you but it sure didn't send me the message McNulty says it did.

McNulty's message was sent months ago, back in December, when U.S. troops refused to take a bullet out of Lindh's leg while they questioned him. It was sent when an FBI agent on Dec. 9 didn't level with Lindh when the suspect asked to see a lawyer after one had been hired for him. It was sent when the attorney general got on television and painted Lindh with a broad brush to link him to terrorists. It was sent when prosecutors overcharged him in the indictment precisely because they figured they might one day need those extra charges to make a deal.

The message I got from the deal itself was a bit different than the one McNulty proposed. The message I got was: the government is willing and able to be practical and to squarely face legal and political realities and if that means cutting a deal to save time and money and energy then so be it.

Lindh got the deal for four simple reasons.
  • He didn't kill anyone.
  • He wasn't plotting any terrorist attacks on America.
  • He had something to offer military officials,and
  • he showed some regret and remorse about his role with the Taliban.

    If any future Lindh out there comes to the table with the same set of factual and legal and political parameters he or she will probably get the same sort of deal. But nothing about the deal tells me that federal prosecutors or law enforcements suddenly are going to play patsies to bad guys here or abroad.

    Then there is lead Lindh attorney James Brosnahan, the architect of an aggressive and ultimately effective defense, who said that his client never hurt anyone. Only Lindh himself knows for sure whether that is true or not. But even if Lindh never fired a shot in anger he still has hurt plenty of people in this country; people who didn't want to have to see or think about one of their own fighting for the Taliban. Lindh may not be the terrorist "who chose to embrace fanatics" as Attorney General John Ashcroft once claimed, but he was no Pollyanna either.

    Even Monday, when asked by U.S. District Judge T.S. Ellis III if he was a student, Lindh replied: "a student, yes, and a soldier." Soft, sweet, harmless young men don't go off and join foreign legions. Neither do true scholars, Islamic or otherwise.

    The parents of Johnny "Michael" Spann, the CIA agent killed in an uprising at the prison Lindh was in last December, also weighed in on Monday. Spann's mother, Gail, told the Associated Press that she didn't think the deal was fair and then, later, Johnny Spann said "when it comes down to it, black and white, (Lindh's) a murderer."

    Now, I cannot fathom how awful it would be to lose a child, especially the way the Spanns lost theirs. And if anyone deserves the right to second-guess the government's deal, it's the people who were most directly affected by what happened in that prison compound in Afghanistan last December when Michael Spann was killed by al Qaeda prisoners.

    But whatever else he may be, Lindh is no murderer. He was bound and cuffed and kneeling in the middle of an open area of the prison when Spann was killed. Lindh was wounded in the leg at the same time.

    There never was any evidence — at least any evidence made publicly available — linking Lindh to an actual plot to kill Spann. No Taliban or al Qeada prisoner, to my knowledge, has ever come forward to say: "yes, John Lindh knew all about our plot to stage the uprising and kill Spann." Even though the government threw a bagful of charges against Lindh it never accused him of murder. When it came time to negotiate, prosecutors gave up on the conspiracy to commit murder charge as well, even though it was by far the most serious charge made against Lindh. And 20 years in prison may not seem like a lot to the Spanns but it sure won't be a walk in the park to Lindh.

    Parties involved in criminal cases are usually most emotional at the beginning and the end of those cases. That's why some of the players said what they said in the crucible of Monday's events.

    Frank Lindh mentioned Mandela because he (uniquely, I would imagine) sees his son as a spiritual being who will spend a great deal of his life in prison for following his passion for Islam. McNulty puffed out his chest after the deal because he wants people to think the government didn't suddenly go soft on Lindh or on the war on terror itself. Brosnahan stood before microphones and tried to humanize his client, knowing full well that there probably will never be as much attention on Lindh as there was at that moment. And the Spanns unfortunately don't have anyone else but Lindh to blame for the horrible death of their son.

    By Andrew Cohen
    • Lloyd Vries

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