John Walker Lindh’s Legacy: To Join The Fight Is Criminal

The “British accent” of the individual(s) who participated in the tragic beheadings of journalists Jim Foley and Steven Sotloff has focused attention on the phenomenon of citizens from the west joining the fight in Syria and/or Iraq. (Indeed, this issue will be featured on the United States’ agenda during its Security Council presidency). The numbers of U.S. citizens who have trained and fought in these increasingly-merged conflicts remain speculative, with estimates ranging from a “small handful” to hundreds to potentially many more. Lawmakers (particularly Rep. Mike Rogers R-MI) and others have argued that such individuals pose a “serious threat” to the United States and urge aggressive prosecutions. In fact, several individuals have already been prosecuted for attempting to join the fight in the Levant. In connection with his effort to travel to Syria to help build the Islamic State of Iraq & Syria (ISIS), Adam “Fadi Fadi” Dandach is being prosecuted for passport fraud (he lied on an application for a new passport after his mother hid his original one). Donald Ray Morgan was apprehended after his tweets indicated that he had sworn allegiance to ISIS and charged with firearms violations. Shannon Maureen Conley—a U.S. Army Explorer—is being prosecuted for providing material support to a foreign terrorist organization under 18 U.S.C. § 2339B. She was arrested when she was about to board a plane to Syria. In her bags were DVDs labeled “Anwar al-Awlaki”, the Al Qaida recruiter and propagandist killed by a drone strike in Yemen in 2011. Eric Harroun, an Army veteran, first joined the Free Syrian Army, which is not a designated terrorist organization, but he later fought alongside the Al-Nusrah Front, which is. Paradoxically, his opponent was the reviled regime of Bashar Al-Assad in both situations. Harroun was originally indicted for providing material support to a designated foreign terrorist organization (FTO); he ultimately plead guilty to a weapons charge.

18 U.S.C. §2339B(a)(1), originally enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

“Material support or resources” is defined with reference to 18 U.S.C. § 2339A(b) as:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials (emphasis added).

The fact that the provision of “personnel” includes the provision is oneself is due to 2004 amendments to the material support statute made by the Intelligence Reform and Terrorism Prevention Act. Satisfying this element requires proof that the individual in question acted under the FTO’s direction or control:

No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.

For example, Zeinab Taleb-Jedi was charged with providing herself to the Mujahedin-e-Khalq (MEK), an FTO operating in Iraq that seeks the overthrow of the Iranian regime. The Islamic State of Iraq and the Levant (ISIL) has been designated as a foreign terrorist organization (FTO) since 2004. (The “Islamic State of Iraq & Syria” (ISIS) is not on the list, which explains why Secretary of State John Kerry has been adamant about using the ISIL acronym).

In addition to providing material support to terrorism or to an FTO, a handful of U.S. nationals have been charged with receiving training from a foreign terrorist organization pursuant to 18 U.S.C. § 2339D:

Whoever knowingly receives military-type training from or on behalf of any organization designated at the time of the training by the Secretary of State under section 219(a)(1) of the Immigration and Nationality Act as a foreign terrorist organization shall be fined under this title or imprisoned for ten years, or both.

Jurisdiction under both §2339B and §2339D exists over U.S. nationals but also non-nationals pursuant to universal jurisdiction so long as they are later “brought into or found in” the United States, even if the relevant conduct occurred overseas.

The material support statutes are meant to serve a preventive function in that they enable prosecutions before the target individuals have engaged in any act of terrorism following the provision of various forms of services or assistance (including oneself) to terrorist groups. §2339D works in tandem with §2339B to reach those individuals who are on the receiving end of training. The seminal §2339D case is that against Daniel Joseph Maldonado, who pled guilty to receiving training from Al Qaida while in Somalia.

The self-inclusive definition of “personnel” and 18 U.S.C. § 2339D (2004) owe their existence to the case of John Walker Lindh, the so-called “American Taliban.” (Disclosure: I served on John’s defense team). John was charged with a range of terrorism offenses, including conspiracy to murder U.S. nationals in connection with the death of CIA agent Johnny “Mike” Span (18 U.S.C. §2332); providing material support to a foreign terrorist organization, to wit, the Taliban; contributing services to Al Qaida (31 C.F.R. § 595), and using or possessing a firearms or destructive device “during crimes of violence” (18 U.S.C. §924). At the time, the term “personnel” was not specifically defined to include oneself. Nor had §2339D been enacted. Without these two modifications to Title 18, the facts as proffered by John and as adduced by the government did not map easily onto then-existing law.

As told by his father, and as found by the district court, John converted to Islam when he was 16. After studying Arabic and the Qur’an in Yemen and Pakistan, John traveled to Afghanistan in May/June 2001 in order to volunteer for the Taliban Army in “defense” of Islam against the Northern Alliance. He was given infantry training, issued a Soviet-era flak jacket and some weapons, and deployed to the front line in northeastern Afghanistan where the warring parties were engaged in anachronistic trench warfare reminiscent of World War I. He was billeted in Takhar province, serving variously as a cook and sentry, when the 9/11 attacks occurred. The United States’ October 2001 offensive against the Taliban Forces involved the provision of significant tactical and air support to the Northern Alliance Forces in Takhar province. When the attack began, John’s unit staged a desperate and chaotic retreat but were captured by Northern Alliance troops under the control of General Abdul Rashid Dostum, a murderous warlord who has been accused of massacring 2000 surrendered Taliban prisoners, among other atrocities. (In a stunning act of rehabilitation, Dostum is now one of Ashraf Ghani’s running mates in the stalemated Afghan national elections). John’s group had been promised safe passage by Dostum, but they were double-crossed and were instead imprisoned underground in the makeshift Qala-i-Janghi (QiJ) prison in Mazar-i-Sharif.

In QiJ, John and other captive Taliban fighters were trapped underground for a week after a prison uprising. They were shot at, burned, starved, and almost drowned when Northern Alliance forces diverted freezing water from an irrigation stream into the underground cells. It was at this time that Mike Spann was killed. The Red Cross eventually rescued the surviving prisoners, including John.

Upon his release, John “confessed” to the material support allegations in his indictment to journalist and adventurist Robert Young Pelton (author of the intrepid travel guide The World’s Most Dangerous Places who was freelancing at the time for CNN) and later to his U.S. captors. Photos subsequently emerged of John being held by U.S. forces—Detainee 001 in the War on Terror. Lindh was naked, bound with duct tape to a stretcher, and wearing an obscenity-covered blindfold. Leaked documents (some of which later disappeared from the Department of Justice’s files) admitted that while interrogated, he was denied a lawyer despite several requests and despite the fact that his father had hired lawyers in California to represent him. The then-DOJ ethics lawyer whom it is presumed leaked the incriminating emails, Jessleyn Radick, was subjected to a criminal investigation, referred to the bar association, and placed on a “no fly” list by her former employer; she now represents whistleblowers.  Other documents produced by the government revealed that a bullet Lindh had received while trapped in QiJ was not immediately removed in order to keep him “uncomfortable” during interrogations.

John’s efforts to get certain charges dismissed, including on the ground that he did not provide “personnel” to an FTO, failed. And, although John’s lawyers filed a suppression motion to restrict the use of any statements made by him under these combined circumstances, the motion was never ruled upon because John was offered, and accepted, a plea bargain on the eve of trial—a trial that, thanks to Virginia’s “rocket docket,” would have commenced on the one-year anniversary of 9/11 in a courtroom just miles from the Pentagon.

John ultimately pled guilty to two non-terrorism charges—violating U.S. sanctions by providing services to the Taliban army in violation of 50 U.S.C. §1705 and a weapons enhancement charge (18 U.S.C. § 844(c)). The plea included a “gag order” preventing him from making any public statements about his pre-trial detention for the duration of his twenty-year sentence and a pledge not to pursue any claims that he was tortured or otherwise mistreated by U.S. military personnel in Afghanistan and aboard two military ships during December 2001 and January 2002. John started serving his time in a medium-security prison in Victorville, northeast of Los Angeles, but he has since been transferred to a medium security prison in Indiana after being attacked. In 2013, he won a lawsuit seeking to lift restrictions on group prayer. He is eligible to be released in 2019.

John’s predicament can be contrasted with two alternative trajectories.

Consider the case of Gaetano Territo. Territo, who was born in the United States, moved with his father to Italy as a young boy. He admitted that he did not know he was a U.S. citizen until 1939, when he was 24 years old. By then, he had already served six months in the Italian Army during World War II. In 1940, Territo was again called to serve in the Italian Army. He claims that he told authorities that he was an American citizen at that time, but was too afraid to press the issue. He served as a private in an army engineers corps, doing manual labor while the United States and Italy were at war. In 1943, he was captured by American forces on the battlefield in Sicily. Held as a prisoner of war, Territo petitioned the federal courts for his release. Territo argued that he should not be held as a POW because he was a U.S. citizen and was impressed against his will into the Italian army. The Ninth Circuit Court of Appeals found that “the status of volunteer or that of draftee, as a prisoner of war who is captured upon the field of battle, is not different” and that his U.S. citizenship was of no moment. To bolster its conclusion, the court analogized that situation to that of Irishmen who took an oath of allegiance to the South African Republic during the Boer War. The Irish were treated as POWs notwithstanding the fact that they were subjects of Great Britain. In re Territo, 156 F.2d 142 (9th Cir. 1946).

Even closer to home is the case of Yaser Eser Hamdi, who after surrendering to the Northern Alliance was also at the QiJ prison during the uprising. Hamdi was initially detained at the U.S. Naval Station in Guantánamo Bay. Once his citizenship was confirmed, he was transferred to a naval brig in Virginia and then South Carolina where he was held incommunicado and in solitary confinement. The Supreme Court granted his petition for habeas corpus and ruled Hamdi was entitled to notice and an opportunity to be heard before a neutral decision-maker. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In September 2004, and before the full contours of these due process rights could be tested, Hamdi was released from captivity without charges and allowed to return to his home in Saudi Arabia. A U.S. government statement indicated that considerations of U.S. national security did not require his continued detention. In exchange for his release, Hamdi gave up his U.S. citizenship and is barred from visiting Afghanistan, Iraq, Israel, Pakistan, Syria, the West Bank, and Gaza. He also renounced any claims against the U.S. government in relation to his detention and treatment. Given these strikingly parallel facts, it is difficult to explain these two disparate outcomes except for the fact that John initially talked to his captors and Hamdi did not.

In January 2009, in one of his last acts before leaving office, President George W. Bush rebuffed appeals that John’s sentence be commuted. As a mother, and as someone with a history of extreme travel, I can only hope that President Obama will exhibit more compassion if the request is made again. 

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About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).