As we said yesterday, the key to understanding how much time Lindh will serve under his plea agreement is in the U.S. Sentencing Guidelines, which are set by the U.S. Sentencing Commission. The applicable U.S.Sentencing Guidelines are here.

For those unfamiliar with guidelines, which is probably 99 percent of the world, here is an excellent free primer by the Federal Public and Community Defenders.

The major points as we see them:

First, which version of the guidelines apply since guideline amendments take effect every November 1? The version in effect at the time of the sentencing unless the guidelines in effect at the time of the crime were more favorable (USSG 1B1.11)

Sentencing in Lindh is set for October 2002. Lindh's crimes occurred from May 2001 through the end of November 2001. The November 2001 edition will be used. The 2002 amendments, including those related to Patriot Act offenses, do not take effect until November 2002.

Second: Where there is no guideline designated for a specific offense, the guideline for the most analogous offense is used. On the supplying services to the Taliban count, the parties agreed that USSG 2M5.2 (Exportation of Arms, Munitions or Military Equipment or Services Without Required Validated Export License) is the most analogous offense. Should the Judge disagree, the Judge is free to use another guideline. As a practical matter, the Probation Department does a guideline analysis and the Judge heavily relies on that. In a case this big, you can bet that Probation was already consulted and calculated the guidelines the same as the defense and prosecution.

Third: What happens if the Judge disagrees and finds another offense guideline is more analogous? Does Lindh get to withdraw from the deal? No, because the plea agreement is under Rule 11(e)(1)(B) instead of Rule (11)(e)(1)© which would so allow.

Fourth: The added felony count to which Lindh pleaded, carrying explosives in commission of a felony, is a sentencing enhancement crime. It is the equivalent of carrying a weapon in furtherance of a drug offense, although in that case the term would only be five years. Guidelines are not "calculated" for this offense but instead simply provide that the sentence imposed will be the term specified in the statute. Here that means a flat ten year sentence is added onto the sentence for the underlying crime of providing services to the Taliban.

Fifth: Because John Walker Lindh has no prior record, he would normally have a criminal history category of Level I. But another terrorism guideline, 3A1.4, says that if the offense involved or was intended to promote a federal crime of terrorism, the criminal history category is bumped to level VI, the highest level. In addition, the offense level gets bumped by twelve. So here, where Lindh would have been a level 26 and category I under the analogous guideline for providing his services, he is now a level 38 and category VI.

Sixth: Lindh does receive three points off for accepting responsibility, bringing him to a level 35 and a Category VI. Guideline range: 292-365 months. But, the maximum allowed by statute for the offense to which he plead is ten years. Thus, the ten year sentence on the count of providing services to the Taliban is a virtual certainty and is also the most he can receive on that count.

Seventh: The mandated consecutive ten year sentence for the enhancement crime of carrying an explosive is tacked onto the ten year sentence for the supplying services offense, bringing Lindh to a 20 year sentence.

Eighth: He has waived his right to appeal the sentence so long as it does not exceed 20 years which would be a legally impermissible sentence.

Other notes: He did not plead to supplying material aid to a terrorist organization. He pleaded guilty only to providing services to the Taliban. He did not plead to the count charging carrying a firearm or explosive during the commission of a violent crime. His guilty plea was to a lesser crime of carrying an explosive during the commission of any felony. He gets credit for time served from the day of his seizure by the military in Afganistan (Dec. 1, 2001). Neither side will argue for more or less than 20 years.

Our conclusion: Lindh gets 240 months or 20 years. (Federal sentences are imposed in months, not years). He does 85% or 204 months. His sentence will be reduced further by the time he has spent in confinement from December 1, 2001 until the sentencing date of Oct, 2002, approximately ten months.

Here are some of today's op-ed pieces we like discussing the plea deal of John Walker Lindh (we'll add to this as the day progresses):

"Prosecuting the War and its Terrorists" by Juliette Kayyem , a former member of the National Commission on Terrorism, now a counterterrorism expert at the John F. Kennedy School of Government at Harvard, in the New York Times. Her theme: This is hardly a victory for the Justice Department. The Government's claim that the 20 year sentence is proof of the strength of its evidence against Lindh defies logic.

"Plea Suggests U.S. Prefers to Avoid Court" by Adam Liptak in the New York Times: He and legal analysts he has interviewed express concerns that the Government may try to avoid federal court prosecutions in favor of detentions and miltiary tribunals in the future.

"A Legal War Without Victory" by David Lindorff in Salon Magazine (paid subscription only). Quote: "The plea agreement appeared to be a tacit acknowledgement by the federal government that its case was at best uncertain against the 21-year-old Islamic convert. Dropped were all charges of terrorism, consorting with al-Qaida and attempting to kill Americans. Nor did the agreement mention the government's earlier claim that Walker had been guilty of participation in a plot to murder CIA agent Johnny Spann."

A Collapesed Terror Case, Boston Globe Editorial: "Even less convincing was the triumphalist crowing of Attorney General John Ashcroft, who said the plea agreement with Lindh's defense counsel was an ''important victory in America's war on terrorism. However, the two charges to which Lindh pleaded guilty were providing services to the Taliban and carrying explosives - in this case two grenades - during the course of that felony. If Lindh's conviction on those charges represents an important victory in the war on terrorism, as Ashcroft claims, then that war must not be going very well."

James Brosnahan, John Walker Lindh's chief lawyer, discussed Lindh's decision to plead guilty and its ramifications Monday night on CNN's Wolf Blizter Reports. Kate Snow conducted the interview. Some highlights:

Plea discussions began about six weeks ago. At the "point where it became clear that the government would be willing to dismiss all terrorist charges and the charge that John conspired to kill Americans, it became something that we had to pay serious attention to, and we did. "

In discussing why the defense team and John Walker Lindh and his family seem updeat about the deal which includes a twenty year sentence, Brosnahan says it is partially because of how much worse it could have been. "As we saw it, we might get very fortunate in the case and maybe only get convicted of one or two crimes, that could be 40 years quite easily. So that was the problem."

On his client: "He's a scholarly person. He very much wants to study. When we discussed the terms of this plea bargain, he wanted to be sure he could study not only Arabic, not only Islam, but also other subjects, American history, political history."

Brosnahan thinks his client will be safe in jail because "This verdict is true. The thing about this verdict is it's true. It does reflect what he did. He was a soldier in the Taliban army in the northern part of Afghanistan, fighting the Northern Alliance. It has nothing to do with the Americans. "

On Attorney General John Ashcroft's prior statements about how much evidence the Government had against Lindh: "Today nine of those counts fell like stones and are gone. So no, he is not a terrorist. I've not heard what the attorney general said, but if he said there's anything in this case that establishes John as a terrorist, I think he'd better read the pleadings."

Lead prosecutor Paul McNulty was interviewed next. The only highlight to us was his answer when asked about the Spann family's negative reaction to the deal. "I don't think [the Spanns] represent the vast majority of those men and women in military. We had a number of them here with us today who were going to be witnesses in our hearings this week, and they were quite satisfied, in fact, quite pleased. They recognized that this was a significant sentence. I personally told them of the sentence, and the reaction was very positive. "

(Quotes from transcript available at Lexis Nexis .)

JAMES J. BROSNAHAN
GEORGE C. HARRIS
TONY WEST
RAJ CHATTERJEE

For Immediate Release Media Contact:
Kerry Efigenio 415-268-7210

Government Dismisses All Terrorism Charges Against John Lindh, Including Conspiracy to Kill Americans Charge, In Exchange For Plea Agreement to Two Counts

Alexandria, Virginia * July 15, 2002 *

Lawyers for John Lindh announced today that the government has agreed to drop all terrorism charges against Mr. Lindh, including the most serious -- conspiracy to kill Americans -- in exchange for a guilty plea to two counts: supplying services to the Taliban, a regulatory violation set forth at 31 C.F.R. ßß 545.204 & 545.206(a); and carrying a rifle and two grenades while supplying services to the Taliban, in violation of 18 U.S.C. ß 844(h)(2).

The government is dismissing the al Qaeda and Harakat al-Mujahideen terrorist counts. James J. Brosnahan, lead defense counsel, said, " The plea agreement makes clear Mr. Lindh never bore nor currently bears allegiance to al Qaeda, Harakat al-Mujahideen, or any other terrorist organization. In addition, Mr. Lindh bears no allegiance to the Taliban. " The government also agrees not to pursue Mr. Lindh as an unlawful enemy combatant.

The plea agreement provides that the government will move to dismiss Counts 1 through 8, and Count 10 of the Indictment, including the alleged involvement or overt act relating to the death of Johnny Micheal Spann.

Each of the two counts carries a maximum penalty of ten years ' imprisonment, to run consecutively. The parties stipulated to the applicable guidelines and calculations as set forth in the plea agreement and mandated by the U.S. Sentencing Guidelines. Conviction after trial on the offenses charged in the Indictment could have resulted in life imprisonment for Mr. Lindh, who turned 21 years old earlier this year.

All claims of mistreatment of Mr. Lindh have been withdrawn, and his continued cooperation is an indication of his lack of hostility towards our armed services.

Mr. Lindh wishes to thank those who have supported him, especially his family. John has stated his intention to devote himself to study.

Here are the Lindh plea documents. They can be viewed and downloaded in .pdf format (Thanks to Neal Sonnett, Esq., Miami, for the info.)

The Lindh Plea Agreement

The Statement of Facts

The Information

For an interesting and not-yet heard twist on the Lindh plea, check out Daily Kos.

John Walker Lindh pleaded guilty today. Two charges, ten years maximum each. Consecutive sentences.

According to Pete Williams on MSNBC and CNN, Lindh has agreed to a 20 year sentence.

Eight counts were dismissed. He pleaded to supplying services to the Taliban, and carrying an explosive (a grenade) in commission of a felony. The Prosecutor said in a press conference after court that this means that he has pleaded guilty to being a foot soldier in the Taliban army and to carrying an explosive.

For those who want to compute the likely starting point for the sentence, check out the 2001 Sentencing U.S. Sentencing Guideline Manual which establish sentencing guidelines for these offenses. If he is agreeing to a twenty year sentence, then the guideline computations must equal or exceed ten years per count. A person can't be sentenced to more than the statutory maxium (here, ten years per count, consecutive, for a total maximum sentence of 20 years.)

The prosecutor said in his press conference after the plea that the parties stipulated to a 20 year sentence. He also said that the Government will forego trying to treat Lindh as an enemy combatant unless he again engages in terrorist activity after his release from prison.

Lindh will serve 85% of whatever sentence he gets. There is no in the federal system, but good time credits amount to 54 days a year off after the first year.

We think the first place to look for the plea agreement online is Findlaw. We can't really tell you what it means until we read it, so for now, you have the media and proseuction's take. The news networks shifted to covering the President in Alabama so the defense as of this writing has not yet spoken, and we turned off the tv. We have enjoyed covering this event live on this weblog, and will be providing more updates later, here and on CNN's TalkBack Live at 3 pm Eastern.

Update: Defense press conference--chief defense lawyer said the plea cleared him on any involvement in the murder of CIA Agent Spann, and that he pleaded guilty to being foot soldier in the Taliban. Lindh's dad said Lindh loves the United States and never once said anything against it. His mother, sister and brother were also on hand providing support.

Held Over from Sunday's posts...

A motions hearing in the John Walker Lindh case begins Monday before federal Judge Thomas Ellis, II. At issue is the admission of Lindh's statements to the military and to a CNN reporter. Lindh says the statements were coerced and in violation of his constitutional rights. He was neither mirandized nor provided counsel. He was not told his family had retained a lawyer for him. He says he was tortured, abused and in pain, such that he could not voluntarily give consent to being questioned.

As to the CNN reporter, Lindh claims he was working with the Government's blessing inside the prison camp and government agents were present during the interview, thus Miranda rights apply.

Lindh is charged with conspiring to kill Americans abroad and providing material support to the Taliban and Al Qaeda. His statements form the core of the government's case against him.

According to the Chronicle article, Peter Keane, dean of Golden Gate University School of Law, believes Lindh shouldn't be prosecuted at all. He thinks the Judge ultimately will admit the statements which is tantamount to giving in to the lynch mob mentality at the expense of upholding the Constitution.

We think the law is clear. If you are interrogated by police agents you are entitled to be Mirandized. If you aren't, the remedy is that nothing you say, and nothing derived from what you say may be introduced by the Government at trial.

That means you have the right to have a lawyer present, and if you can't afford one, one will be provided. The Government's lame excuse is there was no lawyer available where Lindh was being held. We say they had a duty to move him to where one was available before questioning him. Or wait until the lawyer his family hired for him arrived.

Clearly the Govenrment chose to keep Lindh on foreign shores to obtain information from him that a defense lawyer would not have allowed him to give. Not to mention his treatment was cruel and abusive. He was kept nude and blindfolded in a metal shipping container with a bullet injury in his leg. For more on the facts of the case from Lindh's point of view, check out Free John Walker.

The Government made a choice to interrogate Lindh in violation of his constitutional rights. It did so at its peril, and the legal remedy is suppression of his statements.

Another thing that really is unfair about this case is the "manufactured venue." We say unfair, because unfortunately it is not illegal. The law allows the Government to try someone arrested abroad in the place where the the person first re-enters the country. The Government flew Lindh back to the U.S. and they purposely flew him to Washington, so they could try him in ultra-conservative Virginia, increasing their chances of a speedy conviction.

What is so startling to us is the Government's refusal to acknowledge that they have zero evidence that Lindh intended to kill Americans. Even the Indictment against him, Paragraph 14 of Count 1 in particular, points out that when Lindh was given the choice to fight against Americans or fight against the Northern Alliance in Afganistan, he chose the latter. Read it for yourselves.

Lindh was on a religious quest, albeit a misguided one, and ended up in the wrong place at the wrong time. He did nothing that we know of to cause or further the attacks of September 11. He went to the prison camp to surrender. He was kept, like the other prisoners, in sub-human conditions. There is no evidence that we know of to say he participated in the prison uprising. Even the Government had enough sense not to charge him with the murder of CIA agent Spann.

He was helping the Taliban fight the Northern Alliance. He trained in the camps for that purpose, not to fight Americans.

He shouldn't even have to prove this. Or anything. He remains cloaked with the presumption of innocence. The only burden belongs to the Government, to prove him guilty of the specific charged offenses, not some other conduct, beyond a reasonable doubt--with legally competent evidence.

His statements, in our view, are not legally competent evidence. But, the way Judge Ellis has responded so far, we doubt he will see it that way.

Trying to look on the bright side, at least he has a great lawyer who is devoted to his case and a true fighter. We wish that were enough.

John Walker Lindh is in the news today.

A hearing on his motion to suppress statements is set for next week.

A month after deciding Moussaoui was competent to represent himself, the Judge may be having second thoughts. Judge Brinkema correctly noted "The competence of a defendant must be considered by a court whenever the issue is properly raised." Prosecutors weren't too happy with that one.

Stand-by counsel told the Judge that Moussaoui is unstable. In today's unsealed pro se filing, he compared his situation to that of Lee Harvey Oswald, fearing a similar assasination. "Or they migh (sic) claim that I committed suicide. After all they already have done the ground work by claim (sic) that I was mentally unstable, paranoid."

Today was the filing deadline for any remaining motions pro se defendant Moussaoui wants heard by the Court. Among them are a motion complaining that the FBI used an electric fan planted on his car to track his movements prior to September 11, and another in which he compares President Bush to the Roman emperor in the movie "Gladiator."

"The one who say that he was going to return honors to the office was definitely talking about Ceasar Type Honors like in Gladiator: Stabbing the enemy in the back before the fight. Not surprising for Daddy son. Leading (or I must say cheating) from the back," he wrote.

Why should we hang the man, let him hang himself. We think that's the subtext of Judge Brinkema's ruling yesterday that she would not stop Zacarias Moussaoui from testifying before Congress or a federal grand jury. The feds are apparently inclined to take him up on his offer.

And while the Judge ordered two of his counsel to go with him, Moussaoui won't speak with either of them.

Moussaoui claims he has evidence that the FBI had him and the hijackers under surveillance before September 11 and before his arrest. He says that the government wanted the terrorist attacks on September 11 to go forward so the United States could later destroy Afghanistan. And that therefore the Government would not have arrested him if they thought he had anything to do with the conspiracy.

Moussaoui said in letters that he doesn't think he will be allowed to bring his evidence out in his trial so he wants to bring it to the American public. He also wants to to speak with the media.

Meanwhile, his court appointed lawyer filed a motion with the Court describing the evidence against him: 400 audiotapes, 170 CD-ROMs, two videotapes and 755 pages of documents that all were classified. Moussoui is not allowed access to the classified information because he won't use a lawyer. An additional 1,217 audiotapes, 296 videotapes and 202 computer hard drives are useless to Moussaoui because he does not have the equipment to view or hear them.

You can peruse or read the significant filings in the Moussaoui case here.

"American Taliban" John Lindh didn't win a venue change from Virginia. TalkLeft yesterday mentioned the venue transfer in the OKC bombing trials...interesting that the Judge in rejecting the comparison first said that Oklahoma was not a national tragedy like Sept. 11...then quickly corrected himself to say of course it was. Probably saved himself a lot of outrage by citizens of Oklahoma. But why not agree with the need for a venue change? Of course everyone in the country knows about Sept. 11...everyone knew about Oklahoma in 1995. The test isn't whether jurors knew about it, but whether they can be fair and not have opinions as to Walker's guilt. Surely the jury pool so close to the Pentagon is going to be more personally and emotionally involved than a jury in Marin County or Alaska. The presumption of innocence means he's entitled to have the trial start with a clean slate in the mind of the jurors.