## Facts

- A federal grand jury returned a ten-count indictment against John Phillip Walker Lindh, a U.S. citizen, based on alleged conduct in Pakistan and Afghanistan in 2000–2001.
- The indictment alleged Lindh attended a military training camp in Pakistan run by Harakat ul-Mujahideen (HUM), a U.S.-designated foreign terrorist organization.
- The indictment alleged Lindh then traveled to Afghanistan to fight with the Taliban and reported to a Taliban recruiting center in Kabul, identifying himself as an American seeking to fight on the front lines.
- The indictment further alleged Lindh agreed to and received additional training at al Qaeda facilities, with knowledge that al Qaeda viewed Americans as enemies and sought to kill Americans.
- Lindh filed seven pretrial “threshold motions” seeking dismissal of certain counts on multiple grounds (including lawful combatant immunity and selective prosecution) and seeking dismissal or transfer of venue due to pretrial publicity.
- The court addressed these motions on the indictment’s allegations and the parties’ pretrial submissions, not on trial findings.

## Issues

1. Whether alleged participation with Taliban/al Qaeda forces entitled Lindh to “lawful combatant” immunity barring prosecution under federal criminal statutes.
2. Whether Lindh established selective prosecution sufficient to warrant dismissal (or related discovery) based on allegedly disparate treatment of other individuals.
3. Whether pretrial publicity and local conditions required dismissal or transfer of venue to protect the right to an impartial jury.
4. Whether terrorism-related charges, including material-support counts, were subject to dismissal on statutory or constitutional grounds.

## Decision

- The court denied all seven defense motions.
- The court rejected dismissal based on lawful combatant immunity, holding the asserted doctrine did not bar prosecution for the charged offenses on the record presented.
- The court denied the selective-prosecution motion, finding Lindh failed to meet the demanding evidentiary standard required to overcome the presumption of regularity in charging decisions.
- The court denied dismissal or transfer of venue, concluding that voir dire and standard trial safeguards could address concerns about juror bias despite extensive publicity.
- The court declined to dismiss the material-support and related terrorism counts on the asserted statutory/constitutional challenges.

## Legal Principles

- Combatant-related immunity, to the extent recognized, is limited and does not provide blanket protection from prosecution under federal criminal law for alleged conduct outside any recognized privilege of lawful belligerency.
- Claims of selective prosecution require clear evidence of both discriminatory effect (similarly situated persons not prosecuted) and discriminatory purpose; prosecutorial decisions carry a presumption of regularity.
- Pretrial publicity does not, by itself, require dismissal or venue transfer; the defendant must show prejudice so pervasive and prejudicial that an impartial jury cannot be seated, and courts may rely on voir dire and other safeguards.
- Terrorism statutes criminalizing material support to designated foreign terrorist organizations may be enforced where the designation and prohibited forms of support provide sufficient notice and regulate conduct within Congress’s national security authority.

## Conclusion

The district court allowed the prosecution to proceed in the Eastern District of Virginia, holding that Lindh was not immune from criminal charges as a lawful combatant, failed to demonstrate selective prosecution, and did not show that pretrial publicity made a fair trial impossible or required transferring venue.


United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002)