WHY THE AMERICAN TALIBAN MAY ONLY SERVE 13, NOT 20 YEARS, IN PRISON: The Government's Sentencing Mistake In Lindh's Plea Agreement

On July 15, John Lindh, the so-called "American Taliban," entered into a plea agreement with the federal government. That agreement has been widely reported to require Lindh to serve twenty years. In the end, though, because of a government error, he may actually serve less than twelve.

Lindh originally had been indicted for very serious offenses for which he could have received the death penalty. In the plea agreement, though, Lindh pleaded guilty, instead, to violating two rather obscure federal statutes. The violations together amount to nothing more than regulatory offenses.

The reported twenty-year sentence that Lindh is to receive will only be imposed if the judge finds that the two offenses are suitable for a "terrorism" adjustment under the Federal Sentencing Guidelines - and they may not be. If not, the term imposed will be much shorter, and there will be nothing the government - which can only recommend, not compel, a particular sentence - can do about it.

The Violations to Which Lindh Pleaded Guilty: Aiding the Taliban, While Armed

One of the statutes at issue criminalizes the willful violation of various licensing and regulatory restrictions created pursuant to the President's International and Emergency Economic Powers. President Clinton's Executive Order 13129, issued in 1999, prohibits the supplying of services to the Taliban or al Qaeda. According to the plea agreement, Lindh violated the executive order (as well as an additional statutory restriction) by supplying his services as a combatant to the Taliban. A violation carries up to a ten-year term of imprisonment, but can be punished with a lesser term of years.

The other statute Lindh pleaded guilty to violating prohibits carrying "an explosive during the commission of any felony which may be prosecuted in a court of the United States." According to the plea agreement, Lindh "knowingly carried with him an AKM rifle and two grenades" during the commission of the felony of supplying services to the Taliban. A violation carries an automatic ten-year term of imprisonment, which must run consecutive to any other term of imprisonment, not simultaneous with it.

Why The Terrorism Adjustment May Not Apply

The terrorism adjustment the government seeks appears at section 3A1.4 of the Federal Sentencing Guidelines. If the court applies it, Lindh will get 20 years (or possibly 17, with good behavior). If not, Lindh should get a sentence between 13 years, 10 months and 14 years, 9 months (or as little as 11 years, and 9 months, with good behavior). In short, the terrorism adjustment makes approximately a five year difference in Lindh's sentence.

Was Lindh's conduct - fighting for the Taliban against the Northern Alliance - truly terrorism? There are sound legal and policy arguments that for sentencing purposes, it was not.

A federal crime of terrorism must fit two requirements. First, according to statute, it must be "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct."

Second, it must be included on a list of over three dozen enumerated offenses. These offenses range from the destruction of aircraft or aircraft facilities, to the sabotage of nuclear facilities. Generally, these are serious offenses against persons or property. For the most part, they carry with them statutory maximum penalties of 20 years imprisonment or greater, including the death penalty.

Neither of the offenses to which Lindh pleaded guilty is on the list, so the government must have another federal crime in mind. But which one? Again, the agreement does not say.

Moreover, even if the government can name a listed crime that Lindh's offenses are claimed to have promoted, there still is a problem. Whatever listed crime the government points to, Lindh will not have pled guilty to that offense, let alone been convicted of it. He will only have pled guilty to the two offenses described above, which are not on the list. And his guilty plea does not concede that he willfully or knowingly promoted any federal crime of terrorism, let alone committed one.

So can Lindh nevertheless receive the terrorism adjustment? That is the heart of the issue.

Only Two of Three Judges Bought the Government's Argument In An Earlier Case

The terrorism adjustment, enacted in 1995, has been applied less than a dozen times. Consequently, there is exceedingly little case law even mentioning it.

At least one reported case does address its application, however. In 2001, in United States v. Graham, the United States Court of Appeals for the Sixth Circuit considered a similar question to the one Lindh's plea agreement raises. There, a member of the North American Militia had been convicted of violating the general conspiracy statute. But that violation - like the violations Lindh pleaded guilty to - is not one of the listed offenses for a federal crime of terrorism.

Nevertheless, in a 2-1 panel decision, the Sixth Circuit allowed the upward terrorism adjustment to be applied. According to the majority, all that was needed was that the offense of conviction "involved or was intended to promote" a listed offense that was itself "calculated" to coerce, intimidate, or retaliate against the government. The listed offense itself need not even have been the subject of a plea or indictment. Accordingly, it literally could be that any federal offense that contributed to an alleged (but not proven) crime of terrorism can be sentenced as if it were a terrorism offense.

The majority's holding, according to Judge Cohn, "allows for a soft definition of terrorism" at odds with Congressional intent. He quoted a 1995 House Report, which stated that the purpose of the federal crime of terrorism definition was "to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense." That Report, he inferred, showed Congress wanted a definition of terrorism that was "hard": clear and definite.

As Judge Cohn noted, "Plainly, the legislative history . . . reflects a concern by Congress, much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of 'treason,' that 'terrorism' being a phrase which carries far-reaching connotations . . . is not to be used indiscriminately and must be carefully defined."

Will the judge who sentences Lindh think like the two-judge majority, or like Cohn? It is impossible to know in advance. What can be noted now, though, is that the government is gambling five years of Lindh's sentence on the hope that the judge will agree with the Sixth Circuit majority, not the dissenter.

The Failed Attempt to Define Terrorism in the USA PATRIOT Act

Congress tried to define a terrorism crime more clearly (and punish it more harshly) in Section 302 of the PATRIOT Act of 2001, an early version of legislation proposed and ultimately enacted in response to September 11^th. Section 302, however, was never enacted.

Unlike the current terrorism adjustment, Section 302 would have required proof of terroristic motive on the part of the defendant himself beyond a reasonable doubt - or concession of the motive through a plea agreement. More specifically, the government would have had to prove beyond a reasonable doubt, or gotten the defendant to stipulate, that his own crime "was calculated to influence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct."

In Lindh's situation, for instance, the government would have had to prove beyond a reasonable doubt, or get him to concede, that he had carried arms and aided the Taliban in order to intimidate, coerce, or retaliate against the U.S. Lindh's current plea agreement makes no such concession. Indeed, it leaves open the possibility that Lindh gave no thought to the consequences to the U.S., and simply wanted to serve Islam, or to defeat the Northern Alliance, or to return the Taliban to power.

It is possible Section 302 did not pass because Congress feared the need to prove motive would hamstring prosecutors. But it should not have worried: as the cases of terrorists like Moussaoui or Richard Reid show, motive is typically all too clear and all too easy to prove.

It is Time for Congress to Create a Real Federal Crime of Terrorism

Yet the stakes are high - high enough that the issue of whether conduct constitutes terrorism should be determined at the trial or plea stage, not belatedly (and without proper procedural protections) at sentencing. Indeed, they are high enough that due process demands this issue not be relegated to sentencing.

As it currently stands, the terrorism adjustment is the ultimate end-run around the Constitution. If the government cannot prove beyond a reasonable doubt that the defendant is a terrorist, it doesn't need to worry; it can simply opt to prove, instead, that more likely than not, the offense it can prove promoted terrorism. Given that this can occur in practically any federal criminal case, more should be required.

That end-run is significant for the defendant. The terrorism adjustment puts the defendant who receives it in prison for, at a minimum, between 17 years, 6 months and 21 years, 10 months. (The judge may determine a sentence within this range). By way of comparison, 17 years, 6 months is over four times the median drug trafficking sentence imposed during the last fiscal year, which was only 4 years and 1 month. And it is only slightly less than the median sentence for convicted federal homicide offenders, which was twenty years.

Ultimately, the Lindh plea agreement illustrates that it is far past time for Congress to create an actual federal crime of terrorism - one that includes as an element the political motive at the heart of the crime. Terrorists, and only terrorists, should be charged and punished as terrorists; sentencing regulatory violators as "terrorists" defames the gravity of that offense. It's time we treat terrorism as it should be treated: nothing less than the egregious crime that it is.