As pressure mounts for an investigation or criminal prosecution of the officials and the decisions that led to an official government program of torture, the case of John Walker Liindh, the young American fighter arrested with the Taliban early in the Afghanistan invasion, may offer an example of the earliest case of documentable officially sanctioned torture.
It is well documented that Lindh was subjected to what any objective observer would call torture-duct-taped naked to a gurney, his eyes also duct-taped shut, left alone for 23 hours at a stretch in a closed, unheated, unlit steel shipping container, his wounded leg left untreated for a week, removed to be interrogated, threatened repeatedly with death by his American captives, mocked when he asked to see an attorney (his Constitutional right as a US citizen).
But it seems clear that the abuse and torture to which Lindh was subjected after he was captured in Afghanistan was, like the abuse of captives held at Abu Ghraib Prison in Baghdad, not the freelance work of bad apples in the US military. Rather, it was directed from on high levels of the military chain of command.
One of the documents obtained by Lindh's lawyers, who finally got on the case once Lindh had been flown home by the government to face trial on a terrorism charge of helping to kill Americans, was a written memo from the office of then Secretary of Defense Donald Rumsfeld, instructing Lindh's captors to "take the gloves off" in interrogating him. The memo, signed by Rumsfeld's Defense Department General Counsel William J. Haynes II, does not lay out in detail the specific treatments to which Lindh can be subjected, but appears to simply tell his tormentors that they are free to use harsh measures.
Taken in context with subsequent developments-the torture program developed at Guantanamo, at Bagram Air Base in Afghanistan, at Abu Ghraib in Iraq, and at various CIA-run black sites around the world, its seems likely that this Rumsfeld office memo, written back in December 2001, in a sense opened the door to the torture of captives with the encouragement of Rumsfeld and the Bush/Cheney administration.
One piece of evidence that the Bush/Cheney administration deliberately ordered the torture of Lindh is how it handled internal objections to that plan. When Justice Department attorney Jesselyn Radack, a specialist in prosecutorial ethics who was involved in the case from the outset, warned prosecutors in the Justice Department's terrorism unit (headed at the time by Michael Chertoff, later to be secretary of the Department of Homeland Security) that Lindh, because he had requested an attorney, could not have evidence used against him at trial that was obtained by questioning done without an attorney present, or even be questioned without an attorney present, she was pushed out of her job at the Justice Department. She was subsequently hounded, threatened and harassed by the Bush Administration, which even sought to have her disbarred.
More evidence of the administration's sordid role in the torture of Lindh is the way he was silenced once his case got into federal court, and after he was sentenced.
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Originally, the government's intent was to fly Lindh, a resident of Marin County outside San Francisco, which lies in the most liberal federal court district in the country, to Virginia, where his case would instead be handled by the Fourth Circuit, arguably the most conservative judicial district in the nation. Lindh's case was assigned to Federal District Judge T.S. Ellis, a former Vietnam-era combat pilot and an appointee to the bench of President Ronald Reagan. Attorney General John Ashcroft, who had touted the captured Lindh as "the American Taliban," and Chertoff, both had every expectation that Judge Ellis would be accommodating of their efforts to suppress any evidence of torture in Lindh's case. And they had a report from his FBI interrogator-something called a 302 document--purporting to claim that Lindh had confessed to having been fighting against the Americans and linked to Al Qaeda. This was all they needed, they felt, to get him convicted on the most serious charge of plotting to kill Americans, which would have sent him away for multiple life sentences.
But Judge Ellis, in the early days of pre-trial hearings in June, 1982, surprised prosecutors when he agreed to a request by Lindh's attorneys, a team hired by Lindh's family and led by San Francisco defense attorney James Brosnahan, for an evidenciary hearing at which Lindh would be able to challenge the admission of evidence that he had confessed by introducing evidence that he was being tortured at the time.
This threw the government into a panic. If Lindh brought in witnesses from Guantanamo or from Afghanistan who could testify to his torture-as the judge indicated he would agree to allow him to do--it would expose the administrations's whole secret campaign of torture, just as it was getting going in Afghanistan and at Guantanamo Bay.
As I wrote in an article in the Nation back in 2005, on the Friday before that evidenciary hearing, which was set for Monday, June 12, 2002, the Justice Department, at the direction of Assistant Attorney General Chertoff himself, offered Lindh's attorneys a one-day-only, take-it-or-leave-it a plea deal. Chertoff (acting with an alacrity that stands in marked contrast to his sluggish response time several years later when faced, as secretary of homeland security, with the Katrina disaster in New Orleans) offered to drop the serious charges of conspiracy to murder Americans, supporting terrorism, and all other more serious charges, in return for a guilty plea to the two most minor charges facing him, but only if-and this is the key-Lindh would cancel the scheduled evidentiary hearing. Under the offered deal, Lindh was also required to sign a letter drawn up by Chertoff's office stating that he had "not been intentionally mistreated" by his American captors, and waiving any right to claim such mistreatment or torture any time in the future. Lindh agreed to this patently false demand, but following sentencing, Chertoff also, for good measure, added a gag order--technically a "special administrative measure"--barring Lindh from even talking about his experience for the duration of his sentence.
Back in June of 2002, torture by US forces was just a faint rumor. Now, with the release of memos by White House and Justice Department lawyers authorizing official torture retroactively and going forward, and with evidence that has shown torture to have been widely practiced on people held in American captivity, it is clear why Chertoff and the Bush/Cheney administration went to such hurried and extraordinary lengths to completely silence Lindh. His wasn't just the first trial in the "War on Terror." Lindh was the first victim whose torture could be shown to have been officially sanctioned.
Whether Lindh was actually an enemy of America, or just a kid who had the misfortune of signing up in August 2001 in the Taliban's fight against various warlords a month before the 9-11 attacks, and who then ended up being out in the bush with America's newest enemy, is certainly open to debate. He has served seven years of a 20-year sentence so far on two minor charges-carrying a weapon and providing assistance to an enemy of the US. What is clear is that any investigation into the history of America's trip into what Vice President Dick Cheney called "the Dark Side" and it's adoption of a program of medieval torture tactics, must include the testimony of John Walker Lindh-one of its first official victims.