Chertoff and Torture

Article excerpt

Back on Friday, June 12, 2002, the Defense Department had a big problem: Its new policy on torture of captives in the "war on terror" was about to be exposed. John Walker Lindh, the young Californian captured in Afghanistan in December 2001 and touted by John Ashcroft as an "American Taliban," was scheduled to take the stand the following Monday in an evidence suppression hearing regarding a confession he had signed. There he would tell, under oath, about how he signed the document only after being tortured for days by US soldiers. Federal District Judge T.S. Ellis had already said he was likely to allow Lindh, at trial, to put on the stand military officers and even Guantanamo detainees who were witnesses to or participants in his alleged abuse.

The Defense Department, which we now know had in late 2001 begun a secret, presidentially approved program of torture of Afghan and Al Qaeda captives at Bagram Air Base and other locations, had made it clear to the Justice Department that it wanted the suppression hearing blocked. American torture at that point was still just a troubling rumor, and the Bush Administration clearly wanted to keep it that way. Accordingly, Michael Chertoff, who as head of the Justice Department's criminal division was overseeing all the department's terrorism prosecutions, had his prosecution team offer a deal. All the serious charges against Lindh--terrorism, attempted murder, conspiracy to kill Americans, etc.--would be dropped and he could plead guilty just to the technical charges of "providing assistance" to an "enemy of the U.S." and of "carrying a weapon." Lindh, whose attorneys dreaded his facing trial in one of the most conservative court districts in the country on the first anniversary of 9/11, had to accept a stiff twenty-year sentence, but that was half what he faced if convicted on those two minor charges alone.

But Chertoff went further, according to one of Lindh's attorneys, George Harris. Chertoff (now an appeals court judge in New Jersey) demanded--reportedly at Defense Department insistence, according to what defense attorneys were told--that Lindh sign a statement swearing he had "not been intentionally mistreated" by his US captors and waiving any future right to claim mistreatment or torture. Further, Chertoff attached a "special administrative measure," essentially a gag order, barring Lindh from talking about his experience for the duration of his sentence.

At the time, few paid attention to this peculiar silencing of Lindh. …