The Agony! The Irony!

John Walker Lindh… victimized… because he turned down the opportunity to be tried under the relatively more lenient system of military commissions at Guantanamo Bay, Cuba:

On the other hand, two men accused of quite similar conduct managed to make much better deals. They had the good fortune, it turned out, to be held by the military rather than by civilian authorities, and they probably also benefited from the fact that the memory of the Sept. 11 attacks had receded a little by the time they sat down to negotiate.

Consider Yaser Hamdi. Mr. Hamdi, who held Saudi and American citizenship, was captured along with Mr. Lindh and was also accused of helping the Taliban. But he was detained as an enemy combatant and never charged with a crime.

A few months after the United States Supreme Court ruled that Mr. Hamdi could challenge his detention in 2004, he was sent to Saudi Arabia (“in civilian clothes and unhooded,” as stipulated in his deal with the government) in exchange for giving up his American citizenship and agreeing to restrictions on his ability to travel. He is home and free.

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Last month, in the first guilty plea before a military commission at Guantánamo, David Hicks, an Australian, admitted to more serious crimes than Mr. Lindh had. He was sentenced to nine months and should be home and free before the end of the year.

Mr. Lindh’s situation, by contrast, keeps getting worse. In February, for reasons the government will not explain, he was moved from a medium-security prison in California to the maximum-security prison in Florence, Colo., one of the toughest in the federal system. He is 26 now, and his lawyers say that even with credit for good behavior he has 13 more years to go.

Dean Boyd, a Justice Department spokesman, said the department was evaluating a commutation request from Mr. Lindh. “It is important to remember,” Mr. Boyd said, “that the sentence was the result of a negotiated plea agreement between Mr. Lindh and the government and was handed down by an independent federal judge.”

Mr. Boyd declined to discuss why the military justice system seems to be meting out more lenient punishment for similar conduct beyond saying that what takes place at Guantánamo “is separate and distinct from the U.S. criminal justice system.”

Could it be that horror of horrors, that black mark on America’s human rights record, Guantánamo Bay, is actually rendering less harsh outcomes than our own criminal justice system?

Tigerhawk comments:

Of course, Liptak is trying to make the point that if Lindh’s sentence — which was negotiated in a plea bargain — is longer than those of people who went to Gitmo then it must be unfair. It never crosses Liptak’s mind that the Gitmo detainees might have been better off in the care of our military than in the civilian systems in any of their respective countries of origin, including the United States.*

On second thought, looking at the result of this case, perhaps the plaintive Democrat cries to close Gitmo down and try these detainee cases in civilian courts do have some merit… Lord knows all that high priced lawyering seems to have had a most salutory effect.


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