Unusual plea deal could reflect new U.S. policy on terror

Enemy combatant proviso allows military detentions rather than criminal trials


The plea bargain entered into by John Walker Lindh includes an unusual provision that may reflect the government's evolving thinking about how to handle accused terrorists and those allied with them.

The agreement says that for the rest of his life the government may immediately and unilaterally capture and detain Lindh as an "enemy combatant" should it determine that he has engaged in any of a score of crimes of terrorism. The government has said that such detentions, which are military rather than criminal, are beyond the power of the courts to second-guess.

Legal experts said that the reference to enemy combatant status in the plea agreement, along with the government's recent decisions to detain Yasser Esam Hamdi and Jose Padilla as combatants without filing charges against them, suggests that the government now prefers detentions to trials. Padilla is accused of planning to explode a radioactive device, while Hamdi was captured on the battlefield in Afghanistan. Both men claim U.S. citizenship.

Some experts read the outcome in the Lindh case differently, saying it provides proof that the courts remain well suited to hear terrorism cases. After all, the government obtained, only a few months into the prosecution, a substantial sentence apparently without having to disclose sensitive information or otherwise compromise its fight against terrorism.

Douglas Cassel, director of the Center for International Human Rights in Chicago, said the 20-year sentence that Lindh accepted sends a strong message.

"Even if you are a very young man and even if you don't directly engage in acts of violence against Americans, you can get a very significant sentence," he said.

By comparison, Ronald Allen, who teaches criminal law at Northwestern University, said only the gravest crimes warrant a sentence that long against a first offender.

"You would probably have to kill more than one person," he said.

Cassel said the severity of the sentence meant that the government should not hesitate to file criminal charges against Hamdi and Padilla.

But Eric M. Freedman, a law professor at Hofstra University, said, "The United States government has suffered a setback in this, which is good for Lindh but bad for civil liberties, especially if the lesson the government learned is that it's easier to do these things without due process than with due process."

Yale Kamisar, a law professor at the University of Michigan, said the procedure and outcome in the Lindh case should be considered satisfactory to the American notion of justice, especially in contrast to the alternative of indefinite detention.

"At least in this case he got his day in court," Kamisar said. "It may be that if this case arose today they wouldn't do it this way," he said, referring to the government's choice of federal court for its forum. "They've toughened up."

Legal scholars found it hard to identify a rationale that would require an ordinary criminal prosecution of Lindh but military detention of Padilla and Hamdi. The search for a unifying principle becomes even more difficult if Zacarias Moussaoui and Richard C. Reid are added to the mix. Moussaoui is charged in the Sept. 11 attacks, and Reid is accused of trying to detonate an explosive device in his shoe on an airplane. Cases against both men are proceeding in federal court.

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