If you have read previous posts on this page, you'll notice that I have a thing for even-handed applications of the Constitution, even when we're applying it to people who despise it and us. In particular, I've written at length about the unconstitutional incarceration of Yasser Hamdi and Jose Padillo, both American citizens, both being detained without any of the protections that American citizens are entitled to under the Constitution.

Which brings me to John Walker Lindh. From what I've read, I have no doubt that he is guilty of at least some of the things he was charged with, and I think that his plea bargain, in the main, is appropriate -- 20 years and cooperation with authorities in prosecuting others. Standard stuff in criminal prosecutions. There is another provision to his sentence, however, one that you have to look hard to find any reporting about. It is this: for the rest of Lindh's life, the government may immediately capture and detain Mr. Lindh as an "enemy combatant" if the government determines that he has engaged in any crimes of terrorism.

"Enemy combatant" is code. It means that if the government decides that Lindh has engaged in "crimes of terrorism" (an ill-defined list of offenses), he agrees to be forego constitutional protections in federal court and be tried in an extra-constitutional military tribunal. In other words, Lindh has agreed that, at the whim of the government, he loses, among other things, the right to counsel, the right to a public trial (within limits), the right to trial by a jury, the right to be charged by a grand jury, or indeed, the right to be charged at all. Conceivably, he could be detained indefinitely for "protection" of the national interest.

Interestingly, mainstream media seems to have missed, or glossed, this point. To wit, the New York Times, in its main news article on this story, described the length of the proposed sentence, and then added, "In addition to accepting the jail time and a possible fine, Mr. Lindh also agreed to forgo any profits from writing or talking about his experience and said he would testify for the government against others who might be charged in connection with the fighting in Afghanistan." No mention of the "enemy combatant" clause.

Elsewhere, the Times wrote: "Under the deal, Mr. Lindh must serve almost all of the sentence, largely because there is no parole in the federal sentencing system. He pleaded guilty to one charge of providing services to the Taliban and another of carrying explosives while committing that felony. As part of the agreement, any profits Lindh might make from telling his story would be turned over to the government, said U.S. District Attorney Paul J. McNulty, chief prosecutor in the case." Again, no mention of the "enemy combatant" provision.

The Washington Post and MSNBC didn't mention this nuance, either. Here is the Post: "Lindh also agreed to cooperate with investigators by providing any information about al Qaeda and other groups in southern Asia and assisting other prosecutions." And here is what MSNBC had to say: "He must cooperate with authorities, cannot profit from books or films about his experiences and will testify before civilian courts or military tribunals if, for example, detainees are prosecuted in such a forum." To read these descriptions, you'd think that the plea agreement was standard fare.

To be fair, CNN did pick up this angle of the story, although it's not clear that they delved deeper than the public statements by the prosecuters. CNN quoted U.S. Attorney Paul McNulty as saying "'should he [Lindh] again associate with terrorists, he could be brought back into court, where he would be considered an enemy combatant.'" This is true, and probably good police practice, as well, but it's not the whole truth. The whole truth, which CNN did not report, is that Lindh can be brought into a military tribunal, not "back into court." The difference, though small, is significant.

Ironically, given that the TImes' national desk missed the enemy combatant aspect of the story, the only mainstream explication of the issue that I have seen came in a Times sidebar news analysis, buried on the jump page. There, Adam Liptak addressed the issue head-on, as part of a larger analysis that suggests the Bush administration is making this stuff up as it goes along. Liptak offers an insightful analysis of the similarities or differences among the Lindh, Padillo, Hamdi, Moussaoui and Reid cases, and concludes that whether the respective individuals are merely "detainees" or are criminal defendants pending trial in federal courts depends largely on when they were taken into custody, not where they were captured, where they were born or what they are alleged to have done.

I would add one minor note: it appears, based on some quick legal research, that the plea agreement is itself probably not unconstitutional. As suggested in United States v. Knights, a defendant can agree, as part of a plea agreement, to waive fundamental constitutional rights. In Knights' case, the defendant agreed, in exchange for a sentence of parole, that he would submit to police searches at any time and for any reason; when he was later searched and found to have been carrying drugs, he complained that he had been unconstitutionally coerced into waiving his rights against unreasonable searches. The Supreme Court did not address this issue directly -- it found that the search that led to Knights' subsequent conviction was based on probable cause and therefore never reached the issue of whether the agreement itself was per se constitutional. Still, the Court's dicta suggests that the Court wouldn't object to such plea arrangements.

I could argue that waiving one constitutional right in exchange for parole is fundamentally different from waiving most meaningful rights in exchange for twenty years in jail, as Lindh appears to have done, but I would need to do more research on that (for which I have no time at the moment) and I would need to decide if I believe that position, which I'm not sure I do.