The "American Taliban" and a justice system that can no longer protect us

I note that the so-called "American Taliban", John Walker Lindh, is scheduled to be released from prison tomorrow, May 23rd.  Criticism is being leveled at the Bureau of Prisons (where I worked as a chaplain for some years) over his release.

“We must consider the security and safety implications for our citizens and communities who will receive individuals like John Walker Lindh, who continue to openly call for extremist violence,” Sens. Richard C. Shelby, R-Ala., and Maggie Hassan, D-N.H., wrote in a letter to the Federal Bureau of Prisons late last week that was obtained by the Washington Post.

In the letter, the lawmakers reportedly sought details on how the agency is working to prevent prisoners such as Lindh from committing additional crimes after their release. They also asked which other “terrorist offenders” are next in line to be freed and how the Federal Bureau of Prisons determines whether or not someone is an “ongoing public threat.”

There's more at the link.

This criticism, actual and/or implied, is completely misplaced.  The Bureau of Prisons does not determine sentences.  That's done by the courts.  The BOP merely implements the judgment of the courts, and has no discretion to extend a period of incarceration once a convict has "done his time".  To question the BOP about "security and safety implications for our citizens" is ridiculous.  That's not the BOP's responsibility, and if it tried to assume that responsibility, it would be (rightly) pilloried for overreaching its mandate.

That's not to say those of us who've worked at the BOP didn't sometimes wish we could do that.  After all, we often know the inmate better than any other reliable source, and can predict his/her likely future actions.  In my memoir of prison chaplaincy, I wrote:

Sometimes we wish we could go to court and say bluntly, “If you let this man out, he’s going to hurt or kill others. He’s a permanent danger to society. He needs to stay behind bars.” Very sadly, we don’t have the legal right to do that, and courts in most states don’t have the authority to order permanent incarceration for such offenders. Every year we’re legally obliged to discharge inmates ... on completion of their sentences, in the sure and certain knowledge that someone out there is going to suffer, perhaps even die, because we’re doing so. It tears your guts out sometimes.

That's the blunt reality of the situation.  John Walker Lindh is going to be released by the BOP because, in terms of the laws and regulations in force at the time of his conviction and sentence, he's "done his time".  The BOP will therefore have no further jurisdiction over him, no matter what politicians (not to mention the rest of us) might prefer.  What's more, the BOP has no legal way to "prevent prisoners such as Lindh from committing additional crimes after their release".  That's not its job.  It only has responsibility for inmates while they're incarcerated.  Once they walk out of the prison doors on completion of their sentence, the BOP is out of the picture.

There are some who will criticize the court for imposing a relatively light sentence on Lindh.  That's unfair.  The courts can only sentence convicts for the crimes of which they were convicted - and Lindh was convicted of relatively minor crimes, compared to those with which he might have been charged if the prosecution had done a better or more thorough job.

The initial charges leveled against the then 20-year-old Lindh in 2002 included one for murder conspiracy due to the role he played in the deadly prison rebellion.

However, nine of the ten counts in an indictment were then dropped and Lindh ended up pleading guilty to disobeying an executive order outlawing support to the Taliban and for possessing a weapon in Afghanistan.

If the prosecutor doesn't press certain charges, the defendant can't and won't be convicted of them.  Too many prosecutors do this, "plea-bargaining" a serious offense down to something they're sure they can win without too much time, trouble or expense in court.  Don't blame the courts.  They don't choose the charges.

As for the ongoing threat Lindh is said to pose:

In 2017, the National Counterterrorism Center, according to documents obtained by Foreign Policy, underscored that Lindh continued to "advocate for global jihad and write and translate violent extremist texts."

Furthermore, he is alleged to have told a TV producer last March that he would “continue to spread violent extremism Islam upon his release.”

That certainly sounds damning . . . but in the United States, we don't prosecute people for thoughts or intentions.  We prosecute them for actions.   Lindh may well pose a serious threat to people and society after his release, but unless we wish to live in a nation where "thought crime" is punished rather than actual crime, we can't convict him for having evil/wrong/criminal ideas.  If he can be convicted of them, anyone can - and who determines what, precisely, constitute such ideas?  Anyone might end up convicted of "wrongthink" under such circumstances.  Republicans might convict Democrats.  Democrats might convict Republicans.  Both might convict Nazis or Communists.  The possibilities are endless . . .

Lindh will have to adhere to strict conditions for at least an initial period after his release.  If he transgresses those conditions, he can be charged accordingly, and sentenced to another term in prison.  However, he can't be denied his freedom just because we don't like the idea.  If we do that to him, then "Big Brother" can do it to anyone - even us.  We can't have one law for those we like or approve of, and another for those we don't.  We either have a justice system, or a prejudice system.  Which would Americans prefer?

The only answer to the safety of society is for every member of that society to be vigilant, concerned for their own personal security and that of those around them - and prepared to take action to defend that security, if necessary.  It boils down to individual, rather than collective, responsibility.  Certainly, we can't rely on law enforcement to protect us.  They have no constitutional duty to protect individuals, after all.  The Supreme Court has said so.

As always, it's up to us, not the state, to defend and protect ourselves.  If Mr. Lindh persists in his anti-social, ideologically perverse ways, and becomes an active danger to society once more . . . I daresay he may be reminded of that.

Peter