Congress finally defeats Bush, but set to vote to surrender anyway.

by Kagro X

Mon Jul 07, 2008 at 11:01:08 AM PDT

The Bush administration's domestic spies broke the law because the President, with the aid of John Yoo, claimed he had the "inherent right" to do so, despite the fact that the original FISA law declared itself the "exclusive means" by which domestic surveillance could be conducted.

Amazingly, just as a federal court says he was wrong, the Congress seeks to throw the plaintiffs who proved him wrong out of court, and bar anyone else from ever asking the question again.

A key part of the judge's decision relied on Congressional intent in passing the original FISA law:

This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

But supporters of the new FISA "revisions" say although they disagree with certain parts of the bill, they'll support it because this one really makes itself super, duper Double Secret Exclusive.

So here's a question: What will future courts say was Congress's intent in passing this FISA "revision" that immunizes telecom companies who break even its laws that have "exclusivity" provisions in them? Will they not be forced to question how "exclusive" a means can be if the Congress is willing not only to forgive violations retroactively, but use the very same bill to say the law is "exclusive" all over again?

I'm thinking the new bill's "exclusivity" provisions may -- in combination with the retroactive immunity and the Al-Haramain court's decision -- actually end up weakening the law's claimed restrictions on the executive.

Oh well. It's a runaway train, now.

The political establishment and telecom immunity -- why it matters

Congress this week will take another major step toward creating a two-tiered system of justice whereby the elite have license to break laws -- exactly what the Founders warned against.

Glenn Greenwald

Jul. 05, 2008 | Nancy Soderberg was deputy national security advisor and an ambassador to the United Nations in the Clinton administration. Today, she has an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty. The entire Op-Ed is just a regurgitation of the same trite, vague talking points which the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. But it's the language that she uses -- and the brazenness of the lying (and that's what it is) to justify this bill -- that's notable here.

It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:

The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target.

In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."

We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.

I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.

That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:

But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.

Nancy Soderberg and the rest of our political establishment about to immunize telecoms for having broken the law simply don't believe in those principles. And they're saying so explicitly. To them, the President's order to break the law both should and must be obeyed. Where did they learn that?

So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.

Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."

This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:

We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.

So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.

As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.

So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.

Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.

* * * * *

Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:

But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.

As everyone acknowledges, this bill effectively compels the district courts to dismiss the lawsuits against telecoms without any examination of whether the law was broken. Yet, in praising this bill, she says the bill gives telecoms "the right to have their cases reviewed in district court" -- as though they're being denied that "right" now, and as though the bill restores that right. Is it even possible to describe telecom immunity more dishonestly, with more Orwellian deceit, than that?

Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.

Under the law -- both the current FISA and the new bill -- telecoms are legally required to comply with lawful requests from the Government. They don't have the option to "refuse to cooperate." What she's actually saying here is indescribably Orwellian -- that telecoms had the obligation to obey Bush's illegal orders to allow government spying, but they have the option to ignore legal warrants to do so. That's exactly backwards -- there is no danger that telecoms will "refuse to cooperate" because they are required to do so when the government requests are legal.

Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.

What she snidely dismisses as "lawyer-like caution" exercised on "a case-by-case basis" is called "obeying the law." That's what we want people to do; that's the whole purpose of law.

The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.

The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.

The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.

This is the most flagrantly dishonest claim she makes, which is really saying something. The bill does the exact opposite of what she claims. It does not "allow[] the courts to determine the legality of these actions." It bars the courts from doing so in the case of telecoms, while ensuring that the Bush administration remains protected from judicial review by all sorts of procedural obstacles such as "standing" and "state secrets" that Congress is choosing to do nothing to address.

The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?

* * * * *

What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.

Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:

LEGAL BEDROCK

THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .

The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .

Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.

Our Congress, with the political and media elite cheering, is about to violate every one of these principles. They are taking away from the judiciary the power to adjudicate allegations of lawbreaking. They are creating a two-tiered system of justice in which our most powerful corporations can break the law with impunity and government officials remain immune from consequences. And they are, in unity, spewing rank propaganda to the commoners -- who continue to be subjected to the harsh punishment for violations of the law and one of the world's most merciless justice systems -- in order to convince them that granting license to our political and corporate elites to break the law is necessary for their own Good and for their Safety.

* * * *

Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.

-- Glenn Greenwald

The Real Story of John Walker Lindh

By Frank Lindh, AlterNet
Posted on January 24, 2006, Printed on July 7, 2008
http://www.alternet.org/story/31211/

Editor's Note: The public has heard little about John Walker Lindh since the media frenzy over his capture in the winter of 2001. On January 19, John's father Frank Lindh delivered an address at The Commonwealth Club of California. Lindh explained that he and his family have avoided the press for nearly four years; he now wants the public to understand the truth about his son, who he says didn't stand a chance of getting a fair trial in the emotional days following 9/11. Immediately characterized as a "terrorist" by the press and politicians, Lindh faced a jury in Northern Virginia, just a few miles from the Pentagon. The trial date scheduled by the judge was the anniversary of 9/11. Initially facing 11 criminal counts -- most relating to terrorism -- the only charge that John Lindh was found guilty of was violating economic sanctions by supporting the Taliban government, for which the 20-year-old was sentenced to 20 years in prison. The following is excerpted from Frank Lindh's speech.

I believe the case of John Lindh is an important story and worthy of this audience's attention. In simple terms, this is the story of a decent and honorable young man, embarked on a spiritual quest, who became the focus of the grief and anger of an entire nation over an event in which he had no part. I refer to the terrorist attacks of September 11th, 2001. The reason I think this story is important is because our system broke down in the case of John Lindh. My goals today are first, just to tell you the story of John Lindh. Second, to ask you to reflect, based on the fact of John's case, on the importance and the fragility of the rights we enjoy under our Constitution. And my third point is to suggest that the so-called war on terrorism lacks a hearts and minds component.

I want to begin by asking you to call to mind the September 11th terrorist attacks and the shock and horror they engendered in the hearts of everyone. On that awful day, a band of terrorists, who claimed Islam as their cause, hijacked four airplanes and flew three of them full of passengers into occupied buildings without warning -- the World Trade Center Twin Towers in New York and the Pentagon in Washington. They crashed the fourth airplane, also filled with passengers, into a field in Pennsylvania. Three thousand innocent Americans lost their lives that day.

But for those attacks, John's activities, which I will describe, would have been treated with indifference, or perhaps curiosity here in the United States. But, viewed through the prism of the September 11th attacks, those very same activities caused this young man to be vilified as a traitor and a terrorist.

Childhood

John was born in February 1981 in Washington, D.C., during a time when I was working for the federal government. He's the second of my three children. John was the kind of kid that any parent would want. From the time he was a baby, he was very centered, peaceful and content. Later, after he converted to Islam, I told John that I thought he had always been a Muslim, and he simply had to find it for himself.

I'm a practicing Catholic myself, and we raised John as a Catholic. He attended Sunday school along with his brother in Washington. In 1991, when John was 10 years old, we moved from the D.C. area to the Bay Area. At age 12, John saw the movie "Malcolm X" by Spike Lee and became deeply interested in Islam. He later wrote in his autobiographical statement for the court, "I had first become interested in Islam during 1993, after becoming aware of the Hajj, in which thousands of Muslims all over the world gather at Mecca, a holy site in Saudi Arabia. I learned that all Muslims are required to make this religious journey at least once in their life. I was very moved by the image of thousands of people praying together. Perfectly equal and perfectly humble. I began to read all that I could about Islam."

When he was 16, John formally converted to Islam at a mosque in Mill Valley in Marin County where we live. An elder at the Mill Valley mosque testified in John's case and wrote a statement for the court in which he said that in all of his experience in knowing Americans who had converted to Islam, "no one has come close to John in the embodiment of piety and of the true noble Islamic character." By the time he was 17, John was ready to embark on a course of studies overseas and he went to Yemen to study Arabic.

Travels in the Middle East

His first trip to Yemen lasted from July of 1998 to May of 1999, and then his visa expired, so he came home for a few months. Then, in February of 2000, just before his 19th birthday, John returned to Yemen to continue his study of classical Arabic and Islam at a school in Sanaa, Yemen. Again, he had visa trouble, so in November of 2000, John made a decision to go to Pakistan and to continue his Islamic study, memorizing the Koran. It's the goal of every scholarly Muslim to memorize the entire Koran verbatim, and John's goal was to become both fluent in Arabic and to memorize the Koran so that he could then go on and become a Muslim scholar. His goal was to attend the Islamic university at Medina in Saudi Arabia or a comparable world-class Islamic university.

It is November of 2000 when John goes to Pakistan with my blessing. In late April of 2001, John wrote to me and his mother to say that he wanted to go up to the mountains of Pakistan to get away from the heat. That made sense. John never tolerated the heat in Washington, D.C. What he didn't tell us, what we didn't learn until later was that John was going over the mountains, into Afghanistan, intent on volunteering for military service in the army of Afghanistan.

Civil war in Afghanistan

The Soviet Union, as you know, invaded Afghanistan in 1979. They imposed a communist puppet government upon the country. From the time of that invasion, right up through 2001, Afghanistan was engulfed in constant war. After the Soviets withdrew, the country descended into a civil war among the factions -- many of whom had been funded by the United States in the war against the Soviets, and the consequent civil was resulted in terrible devastation in the country.

Afghanistan had by far the largest refugee population in the world. Many of these refugees lived in terrible conditions in refugee camps in Pakistan, across the border. Eventually, the Taliban, which rose up out of those refugee camps, managed to consolidate power over most of the country. So by the year 2001, they had consolidated power over all except the Northeastern region of the country, which was still controlled by the Russian-backed Northern Alliance, a group of warlords.

America's allegiance with the anti-Russian factions in Afghanistan extended not only through the presidency of Carter, Reagan and the first President Bush, but also to the current Bush administration. In the spring of 2001, roughly at the same time John went to Afghanistan, Secretary of State Colin Powell personally announced a grant of $43 million to the Taliban government for opium eradication, which the New York Times then refers to as "a first cautious step towards reducing the isolation of the Taliban incoming by the new Bush administration." Secretary of State Powell released a press release in which he said "we will continue to look for ways to provide more assistance to the Afghans." This is the context in which John goes to Afghanistan.

When he did go into Afghanistan, John received infantry training at a government-run military training camp. But the training camp was funded by Osama bin Laden. Osama bin Laden really had two operations going on. One was to finance the Afghan army operations -- these training camps for infantry. But he also, as we all know now, had a terrorist organization under way, a highly secretive terrorist organization that we call al Qaeda.

Twice in the course of his training there, John actually saw Osama bin Laden and met him on one occasion. He came away from those encounters very skeptical about bin Laden because John recognized instantly that bin Laden was not an authentic Islamic scholar based on what John himself knows. In the course of John's subsequent criminal cases, attorneys hired a professor named Rohan Gunaratna. He is the world's leading authority on al Qaeda and author of the book "Inside al Qaeda."

Gunaratna has been employed by the U.N., but also by the government of the United States as an expert in al Qaeda, and he interviewed John extensively. After all these interviews, he made this following conclusion: "Those who, like Mr. Lindh, merely fought the Northern Alliance, cannot be deemed terrorists. Their motivation was to serve and to protect suffering Muslims in Afghanistan, not to kill civilians."

U.S. in Afghanistan post-9/11

After the September 11th attacks, the United States goes to war with Afghanistan. There's a period of one month in which the United States attempts to negotiate the extradition of bin Laden and his terrorist group. Those negotiations failed, and so, in October, almost a month later, the United States begins an invasion.

I wanted to introduce an important player in these events. It's a notorious Northern Alliance warlord named Abdul Rashid Dostum. Dostum had served as an officer in the Soviet-backed communist puppet government in Afghanistan. The New Yorker magazine last year said he was "perhaps Afghanistan's most notorious war lord," and he's viewed by most human rights organizations as among the worst war criminals in the country. Throughout the 1990s as well as during the U.S. invasion of 2001, Dostum was involved in numerous documented cases of torture and murder of prisoners of war. He dominates the area of North Central Afghanistan around the city of Masari Sharif.

In the period in late 2001, Taliban forces in Northern Afghanistan were overrun by the Northern Alliance forces after an aerial bombing by the United States. The American strategy was to use Northern Alliance troops as a proxy rather than commit American troops to the ground. This may have been a sound military strategy; however, it appears that the American generals who planned this invasion made no provision for the handling of the prisoners of war.

What happened as a consequence was the murder of thousands of Taliban prisoners by the Northern Alliance during the period of November and December of 2001, the same time when John's case comes to our attention. These war crimes have been documented by Physicians for Human Rights and in the mainstream media here in the United States, including a cover story in Newsweek magazine.

Capture in Afghanistan

Let us return now to the story of John. In early September, before the 11th, John arrived at the frontline in Tahar. The two armies there -- the Taliban army and the Northern Alliance army, were locked in an old-fashioned stalemate. John arrived, he was issued the standard rifle and two hand grenades and performed sentry duty there at the front. He never fired his weapons. After the American bombing campaign began in October, the line broke. Again, no American troops are here in Tahar, it's all Northern Alliance troops, but the American bombing happens.

The frontline breaks, the Taliban soldiers retreat to the capital of Tahar -- Kunduz. It's a confused retreat. Many of them are killed. If they're captured by the Northern Alliance, they're killed. There's a chilling series of pictures in the New York Times of a prisoner as he's taken, castrated and then killed. This is what John faced. He was very desperate and near dead by the time he got to Kunduz.

Then there's a deal made by General Dostum for safe passage of these prisoners from Kunduz to a city in the west called Herat, near the border of Iran. John is one of the 400 that are part of this deal with Dostum. They make this deal, and a large amount of money is given to Dostum in return for the safe passage. The only condition Dostum imposes is that the soldiers must give up their weapons before he'll allow them to pass through. So they give up the weapons and then immediately Dostum breaks the deal. He diverts the prisoners from their path into his fortress -- a place called Kuala Jungi. It's an old 15th- or 16th-century walled fortress near Mazari Sharif. And there all hell broke loose.

The next morning, John was brought out along with these other prisoners, with their hands tied behind their backs for interrogation. There are no American troops present here, but there are two American CIA agents, and they're doing the interrogation of the prisoners as they're brought out of the basement. Their arms are tied behind their backs at the elbow, and they are being very brutally abused by Dostum's troops. All of them are afraid that they are going to be killed by Gen. Dostum given his reputation.

John is struck in the back of the head with a rifle butt by one of the Northern Alliance troops as he's brought out of the basement just moments before some video was taken of John being interrogated by the two U.S. agents. They threatened John with death. John remained silent (Lindh believed the two agents were working for Dostum.) His only goal was to get to Herat so that he could get back to Pakistan.

Moments after this video is shot, the last of the remaining 400 or 500 prisoners, as they're brought out of the basement, jumped Dostum's guards, seized their weapons, and a melee broke out. Dostum's troops panic and begin to shoot down all the prisoners in the yard, most of them, like John with their hands and arms tied behind their backs. Dozens and dozens of these Taliban prisoners are killed on the spot. John gets up and starts to run. He is shot immediately in the thigh.

He lay on the ground there for 12 hours, pretending to be dead while the carnage continued around him. That night, some of the survivors managed to get back down into the basement of the building where they had been taken when they first were brought to the fortress. They went in among the dead and found the wounded and brought them down into the basement. John was one of them.

In the days that followed, there was a deliberate effort by Dostum, supported by the United States Special Forces, to simply exterminate all of the Taliban prisoners in the fortress. By the end of that week, most of them were dead. John and a group of them were still holed up. They were unarmed, they were wounded, and they were in the basement of the fortress. They dropped hand grenades down, they poured burning oil down. At one point, they attempted to drop a 1,000-pound bomb on the building, but it was misdirected and actually killed some of Dostum's troops, so they stopped with the bombing, but they continued to try to exterminate these prisoners.

There was a British journalist there named Luke Harding, and he wrote at the time that "Dostum's Northern Alliance and his British and American allies had only one plan: to kill all those in the compound." On Friday, the 30th of November, after six days, they flooded the basement with water from an irrigation stream and that killed many of the remaining soldiers down there in the basement. As Luke Harding wrote, "For those who had died, it had been a cold, terrifying, and squalid extinction." Harding wrote, "We had expected slaughter, but I was unprepared for its hellish scale."

Media storm

John was discovered among the 86 survivors of this massacre in the basement of the building, and he instantly became an international sensation. He was quickly dubbed the "American Taliban" in Newsweek magazine which initially broke the story. The coverage from the beginning was overwhelmingly negative and prejudicial, and falsely linked John with terrorism. After the prisoners emerged from the basement of the fortress, they were taken to Sheberghen -- a town nearby -- for medical treatment. They were all starving, they had nothing to eat the entire week. They were suffering from exposure, and pretty much all of them were wounded, including John.

John had the AK-47 bullet in his thigh and numerous shrapnel wounds. He was very near death when he arrived at Sheberghen. As he's lifted onto a gurney by attending medics, a CNN cameraman named Robert Pelton began to film John. The tape shows John saying to Pelton, "Look, you don't have my permission to film me. If you're concerned about my welfare, don't film me." The ethical thing to do at that point would have been to turn off the camera. But Robert Pelton did not do the ethical thing. He kept the camera running and the microphone on as John was interviewed.

The sensation that resulted from the CNN interview is difficult to describe. I think you probably all have seen it. The interesting thing about the CNN interview, from my perspective, is that it was completely exculpatory. He was injected with morphine, and of course then begins to talk, and he forgets about turning off the camera. He tells his story and it's completely exculpatory. He says everything that I've told you -- "I was in the Taliban army, I met bin Laden," and then all the terrible events around this massacre, but the effect in the United States at that time, given the post-9/11 mood, was just terrible. The effect of this video seemed to confirm people's suspicions that John was a terrorist.

It wasn't just the television media that caused this prejudice, it was the print media as well. Newsweek magazine published a terrible cover story saying that John had supported the 9/11 attacks. The tabloid media was on to the case as well. The National Enquirer, which appeared at grocery store checkout lines throughout the country, featured a cover story with John's picture saying "America's traitor tells all." But even worse than this coverage by the tabloids, I believe, was the treatment that John received in the mainstream media including the New York Times.

On Tuesday, the 11th of December 2001, the Times published a front page article above the fold featuring a very compelling photograph of the funeral of Mike Spann, the CIA agent who had been killed at Kuala Jungi at the uprising. The theme of the entire story was that John had fought against his country and had caused the death of Mike Spann.

Interestingly, directly alongside of this incredible damaging article on page 1 of the New York Times, there appeared a leading article that same day about the widespread killing of the Taliban prisoners by General Dostum and the Northern Alliance. The byline of the article was Sheberghen, the very place where John had been taken and filmed by the CNN crew. But the New York Times overlooked the fact that this was the context in which John had been found, that John was the fortunate survivor of a mass killing of prisoners by the Northern Alliance.

Mistreatment by the military

Upon his capture, John was quickly transferred from Dostum's custody to the custody of the U.S. military. I would have thought at that point that John was in safe hands, and John himself thought the same thing because he said so in a brief letter that he dictated to the Red Cross who visited him that first day. But an order, emanating directly from Secretary of Defense Donald Rumsfeld, instructed the U.S. military to "take the gloves off" in the questioning of John Lindh.

Rumsfeld's order is documented in a letter that was provided to John's lawyers by the prosecutors, and it also has been reported as a front-page story in the L.A. Times. I do not want to dwell here on the military's mistreatment of my son, but I will say categorically that he was treated in a way that is shameful to our nation and its ideals. John's bullet wound was left festering and untreated; he was blindfolded and bound hand and foot with tight plastic strips that caused severe pain. He was stripped naked and duct-taped and, in this condition, blindfolded, bound naked to a stretcher and then left in the cold in an unheated metal shipping container on the desert floor in Afghanistan.

After one initial visit, the Red Cross was denied any further access to John. The letters I wrote to John through the Red Cross were never delivered to him. All of this conduct was in violation of the Geneva Conventions of war. It was beyond what any civilized nation should tolerate. Yet, despite the fact that the torture and abuse of John Lindh was fully disclosed in the press, there was no outcry here in the United States, so strong was the emotion at that time against this young man.

What I find most troubling about this treatment, however, was that it was completely gratuitous and unnecessary. John Lindh did not need to be tortured in order to tell American forces what he knew, where he had been and what he had seen. He was glad to be rescued, he had nothing to hide. I cannot fathom why the military would have felt it necessary to humiliate him in this way.

Prejudicial commentary

I would venture to say that never before in the history of this country has any criminal defendant been subject to anything approaching the kind of prejudicial statements made by officials in John's case. Interestingly, though, in the very beginning, when John was first captured, President Bush had a sympathetic response. He said, "I don't know what we're going to do with the poor fellow" in an interview with Barbara Walters. And he referred to him by name, he said, "John." Sen. John McCain had sympathetic words, and Sen. Orrin Hatch also said that he thought that John was on a spiritual quest. But after the CNN interview was aired, the whole mood shifted.

It was both parties, Republicans and Democrats. All of these statements were broadcast and covered in the national media and came into everyone's home in the country. In an Oval Office interview on December 21st, President Bush said, "Obviously Walker is unique in that he is the first American al Qaeda fighter we have captured."

John had never even heard of al Qaeda.

Sen. Hillary Clinton, in a nationally televised interview on "Meet the Press," calls John a "traitor." Secretary of Defense Rumsfeld says, "John Lindh was captured by U.S. forces with an AK-47 in his hands." Imagine the prejudice to John from such a false and inflammatory statement. Secretary of State Colin Powell, the same Colin Powell who had sent the money to Afghanistan in April says, "John Walker Lindh has brought shame upon his family." Former President George Herbert Walker Bush says this: "He's just despicable. I thought of a unique penalty: Make him leave his hair the way it is and his face as dirty as it is, and let him go wandering around this country and see what kind of sympathy he would get." This was on Good Morning America, December 19th.

The Speaker of the House of Representatives, Dennis Hastert, said that John was a "terrorist" who belonged to "an organization that took American lives and came against the American Constitution." Sen. McCain says, "I'd like to take him to Ground Zero, and show him Ground Zero and see how he feels after that." Rudy Giuliani was the person of the year in Time magazine, and what does he do with that bully pulpit? He says, "When you commit treason against the United States of America, particularly at time when the U.S. is in peril of a further attack, I believe the death penalty is the appropriate remedy to consider."

But the most prejudicial commentary of all came from Attorney General Ashcroft. He held two nationally televised press conferences in John's case. I have a copy of the New York Times, the page 1 article on the first of those conferences. This was on the 15th of February. Mind you, John is still overseas, still hasn't even had a chance to visit with his lawyer. He says, "We cannot overlook attacks on America when they come from United States citizens." This is announcing the criminal complaint against John. He's the leading prosecutor in the United States. The same day he says, "We may never know why he turned his back on our country and its values, but we cannot ignore that he did. Youth is not absolution for treachery, and personal self-discovery is not an excuse to take up arms against one's country."

In the second of these conferences, announcing the indictment, the attorney general says, "The reasons for his choices may never be fully known to us, but the fact of those choices is clear. Americans who love their country do not dedicate themselves to killing Americans." As any lawyer would know, it is a breach of professional ethics for a prosecutor to make prejudicial comments about a criminal defendant who is awaiting trial.

Criminal case

Then we get to the criminal case which the Boston Globe refers to as a "collapsed terror case." Initially, the government charged John with 11 criminal counts, most of terrorism-related charges such as supporting al Qaeda. In the end, the government dropped all of the terrorism-related charges in a plea bargain. The one charge that John pleaded guilty to was providing assistance to the Taliban government in violation of the economic sanctions that President Clinton had imposed.

I think it's clear that the government really had to stretch to find any criminal statute that John's conduct had actually violated. But for that one offense, and because he carried a weapon in the commission of the offense, John has been sentenced to 20 years in federal prison, and he's serving that sentence now in Southern California.

On the basis of the inherent unfairness, and also the fact that John has been a model prisoner from the beginning, John's lawyers have filed a petition with President Bush asking that John's sentence be commuted, and that petition is currently pending with the president.

Conclusions

Quickly, I have three conclusions that I have based on the facts of John's case. First, the rights we enjoy as citizens under the Constitution at times of war and national crisis, and they can be undermined by politicians and the media. Recall that every one of the government officials who I quoted took an oath of loyalty to the Constitution when they were sworn into office. And yet look how quick they were to disregard the Constitution in order to make rhetorical points about John Lindh.

As I tell law students when I speak with them about John's case, the Constitution of the United States does not live in a vault at the National Archives, the Constitution lives in our hearts, and it's up to us as people to maintain the values embedded in the Constitution. We cannot trust the politicians and the media to do the job for us. I think I have to say, too, that it was only the intervention of a courageous legal team, headed by Jim Brosnahan, that literally saved my son's life. I cannot even contemplate what might have happened if these lawyers had not stepped up to defend John.

I think it's clear that the United States really made a mistake in treating Taliban footsoldiers and the Afghan army as if they were al Qaeda terrorists. This was unjust in the eyes of the whole world, but especially among Muslims. And finally, I hope you will indulge me when I say that the mistreatment and the imprisonment of John Lindh was and is a human rights violation. It was based purely on an emotional response to the 9/11 attacks, and not on an objective assessment of John's case.