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Background: Plea Bargain

July 15, 2002 at 12:00 AM EST
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MARGARET WARNER: The plea agreement between John Walker Lindh and the government was reached late last night after intense negotiations last week and through the weekend. Lindh pled guilty to two charges that he aided the Taliban and carried explosives in doing so. Other counts — alleging that he’d conspired to kill Americans, and had assisted terrorist organizations, including al-Qaida, were dropped. If the judge agrees to the terms of the deal, Lindh will serve two consecutive ten-year prison sentences. We hear now from the two main players in the negotiations. First: Paul McNulty, the U.S. Attorney for the eastern district of Virginia. Welcome, Mr. McNulty.

PAUL McNULTY: Thank you.

MARGARET WARNER: So why did the government make this deal rather than go on trial on a lot more charges?

PAUL McNULTY: Well, we were confident if we had gone to trial, we would have prevailed. I think we felt very good about our case, and so we had to make a difficult decision. But at the end, we felt that a 20-year sentence was a very tough sentence, a strong sentence that represented certainly a firm punishment.

And that combined with the cooperation that was pledged by the defendant in the case, and the opportunity to really save the resources, to really be the most effective way for to us move forward in our prosecution of cases in the war on terrorism and in the military’s prosecution of the war, this just made a lot of sense for us.

MARGARET WARNER: Attorney General Ashcroft said earlier this year, however, that Lindh had, that his whole time over in Afghanistan and Pakistan constituted a timeline of terror. He said he chose to follow bin Laden. Yet all the counts alleging involvement with al-Qaida or terrorist organizations, all of those were dropped. Why?

PAUL McNULTY: Well, dropping the counts doesn’t concede somehow that those counts could not have been proven or that they were not well substantiated. When you get into a situation where you’re trying to reach a plea agreement, you have to select some counts that represent the core charges of the case and obviously you are going to drop other charges as part of that agreement.

We felt the charges that were selected, the charge of providing support to the Taliban, given the Taliban’s role in providing and offering sanctuary to and protection to al-Qaida, in controlling Afghanistan, al-Qaida’s base, and the carrying of the explosives, represented the core of what our case was all about. So certain charges get dropped when you do that. But it doesn’t mean that you don’t have a case.

I think also it’s important to see that — I actually think that the defense saw the strength of our case and those charges, and that’s what motivated them to seek a plea agreement. If they thought that we only had those counts to win on, then I think they would have certainly wanted to go to trial. But they knew there was a risk of us winning on many other counts. That’s why we ended up with an agreement.

MARGARET WARNER: Now, you all came to the judge together just about 20 minutes before court was to open today on hearing that would have established whether or not the confession that the government got from John Walker Lindh over in Afghanistan was, in fact, admissible.

And his attorneys, of course, had argued that not only did he not have a lawyer. He hadn’t been told he could have a lawyer. He was blindfolded, shackled, et cetera. In other words, he was in a military situation and now he was being tried in a criminal case. Did you have a case — if that confession had been thrown out, would you have had a case?

PAUL McNULTY: I think the loss of his statement certainly would have been very damaging. We would have had to look at our counts and see how we would be able to prove them up without these statements. Those statements were very central. We were also very confident that we were going to win those hearings.

And, again, I think the defense had an inkling we were as well because if we had lost those hearings and we had lost those statements, the defense would have been in a much stronger position. The defense had filed very strong pleadings in the case. The motions to dismiss that were filed earlier in the case were very strong motions in the sense they were well written and there was a lot of effort put into them. And yet they were turned away on every one of those.

And I think it showed them that where they wanted to go in this case, the evidence that they had hoped they would find, it just wasn’t there for them. And I think these suppression hearings would have been consistent with where we have been so far. So we were confident that we were going to get through that. But they also presented, like all things, some risk, and that’s why we had to look at the option of seeking the plea at this point.

MARGARET WARNER: Now part of the agreement is that John Walker Lindh agrees to cooperate with the government. How much do you really think he knows that can be useful?

PAUL McNULTY: It’s hard to say. I mean sometimes small things can be very useful. It’s not that he needed to be at the center of some particular planning meeting, but rather he might be able to identify individuals, and that could be useful. That’s a little beyond my area of expertise. I’m just focused on prosecuting these cases. So there are many people in the intelligence community, in the military community, who will debrief him. They may find something of benefit. But it really is difficult to say at this point.

MARGARET WARNER: Are the reports correct that this, first of all, pursuing a plea agreement and then the deal itself was approved at the highest levels of government, i.e., the White House?

PAUL McNULTY: I don’t speak for the White House. But given this case, the great significance, we had to make sure we had the administration on board and we sought to get that kind of clearance throughout the administration. I’ll defer to the White House to speak for itself.

MARGARET WARNER: Now, if the judge accepts this, how long do you actually expect him to serve? How long would he have to serve?

PAUL McNULTY: There is no parole in the federal system. The federal system says that you have to serve at least 85 percent of the sentence. If the defendant is on good behavior during the time, he will build up some credit, but he can only receive up to 15 percent of good time. So it remains to be seen whether or not he will earn that good time. But if he does, then at the most he can get 15 percent. He has to serve 85 percent of the sentence.

MARGARET WARNER: And as I read the agreement and a lot of it was in lawyer-like language, but it appeared as if you had some agreement about the conditions under which he would be held, that perhaps it wouldn’t be as harsh as often in national security cases. Is that true?

PAUL McNULTY: Well, what the agreement says is that we can make certain recommendations to the Bureau of Prisons. The Bureau of Prisons ultimately decides how to treat an offender. Because of the national security nature of the case, he has to be held in a special circumstance so that there is no risk to any information he might have getting out into other hands.

While he is in that circumstance the Bureau of Prisons has to make some decisions about what he will have available to him and what he won’t have. They’re going to work on that. We agreed to try to help provide some things that he can use to read and to educate himself.

MARGARET WARNER: Just briefly before we go, what would you say this experience has said to you about the special challenges of trying terrorism cases in a civilian court?

PAUL McNULTY: It can be done. It has been done. The wheel of justice worked very well in this case — five months from the time of the indictment to this 20-year sentence, so I think that we’ve seen the criminal justice system as an effective tool in fighting a war on terrorism.

MARGARET WARNER: But you did say that you were relieved not to have to have all these military people come in and testify and so on.

PAUL McNULTY: Sure. When you’re talking about thirty to forty people, from privates to generals, this is a lot of fighting time that would have been consumed. But I think we were prepared to do it and we’re prepared to do it in any case where the facts warrant it.

MARGARET WARNER: All right. Mr. McNulty, thank you.

PAUL McNULTY: Thank you.