JOHN WALKER LINDH AND THE FIRST AMENDMENT

By JOANNE MARINER

Tuesday, Jul. 30, 2002

A little-noted but extremely dismaying aspect of the plea agreement ending the John Walker Lindh prosecution is the provision barring Lindh from profiting from any book that he might decide to write about his experiences in Afghanistan. This stipulation is unwise, illiberal, and arguably unconstitutional.

While the government has every right to punish Lindh for his criminal conduct, it has no business trying to silence him. Indeed, given the urgent need to understand the Islamic circles in which, until last year, Lindh moved, the public interest lies in encouraging Lindh to write a book, rather than seeking to prevent it.

Lindh's Story

As an American who converted to Islam, studied the religion's most fundamentalist strains in Pakistan, and then journeyed to Afghanistan to fight alongside the Taliban, Lindh undoubtedly has much to recount. Moreover, his story is of obvious relevance to some of the most pressing issues of the day: Islam, terrorism, and Osama bin Laden.

The government may believe that it has little need for Lindh's hypothetical future book. It has, after all, spent weeks questioning Lindh, and has inserted a provision in the plea agreement that ensures Lindh's continued cooperation with future terrorism investigations. Indeed, there is probably a small team of FBI and CIA agents poring over transcripts of Lindh's interrogations, carefully parsing them for any scrap of useful information.

But the public itself could benefit from learning more about Lindh's sojourn in the Islamic world. The story of why he made the trip from Marin County to Kandahar - via Yemen and Pakistan - and what he saw and heard during his immersion in militant Islam, might make valuable and engrossing reading. Having grown up in our culture and, presumably, become fluent in a very different one, Lindh offers a rare perspective.

Burdening Speech by Barring Profits

While the plea agreement does not directly bar Lindh from writing a book, it deprives him of any financial incentive for doing so. As the Supreme Court pointed out in Simon & Schuster, Inc. v. The New York State Crime Victims Board, a 1991 case, the First Amendment presumptively bars the government from imposing such discriminatory burdens on legitimate speech.

That case involved New York's "Son of Sam" law, which required criminals to place the profits of any book they wrote describing their criminal acts into an escrow fund, which victims of those crimes might then claim. Striking down the law, the Court noted that similar rules, had they existed in the past, would have covered such works as The Autobiography of Malcolm X and Thoreau's Civil Disobedience.

The present stipulation is, if anything, even less defensible than the rule struck down in Simon & Schuster. Unlike the New York provision, and similar provisions enacted in other states, it does not further the compelling interest of compensating victims using the fruits of crime. There are no poor orphans or widows who stand to benefit from Lindh's potential book profits. Instead, under the terms of the agreement, the sole beneficiary of such profits is the U.S. government.

To defend the provision, the government might try to distinguish it from the invalid New York law by pointing out that it was not imposed on Lindh, but instead voluntarily accepted by him. It is true that a defendant may agree to waive a number of fundamental constitutional rights, such as the right to a jury trial, in entering into a plea agreement.

But the government must have a legitimate interest in encouraging the defendant to relinquish his or her rights, an interest that does not exist in this case. While the interests of efficiency, for example, militate in favor of encouraging a defendant to waive the right to a jury trial, the right to appeal the verdict, and so on, there is no such interest here.

Granted, it is unlikely that the insertion of the plea stipulation was wholly arbitrary. The Justice Department may, for example, have wanted to discourage Lindh from writing because it fears that the public may perceive Lindh as someone other than the purposeful traitor profiled in his indictment, or the "trained terrorist" that Attorney General Ashcroft described when announcing the indictment.

In addition, given Ashcroft's clear tendency to conflate dissent and disloyalty, the Justice Department may not want to allow Lindh a platform for expressing views that disagree with the Bush administration's official positions on terrorism and the war in Afghanistan.

But whatever the Justice Department's motivation for inserting the provision, it cannot justify intentionally burdening legitimate speech. While Lindh may not have any right to take up arms against the United States, he has every right to pick up his pen.

The Court Should Strike out the Provision as Contrary to Public Policy

The district court hearing the John Walker Lindh prosecution is scheduled to finalize the plea agreement at an October 4 sentencing hearing. While Lindh's lawyers are unlikely to challenge a plea provision that he voluntarily agreed to, the district court should still strike the provision out of the plea agreement as contrary to public policy.

If the provision is left to stand, the Justice Department should not enforce it. Nor should prosecutors seek to insert such provisions in future plea agreements, particularly in cases involving issues of such public importance. The approach such provisions represent is wrong-headed and ill-considered - and unworthy of a democratic society.


Joanne Mariner is a FindLaw columnist and human rights attorney. She has written numerous pieces on terrorism, the detention of terrorism suspects, and the war in Afghanistan, all of which are available in the FindLaw archive.

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