Lindh, whose federal trial is scheduled for this fall in Alexandria, Va., is charged with 10 counts that include conspiracy to murder Americans, aiding and conspiring to aid terrorists, and aiding an organization, the Taliban, that supports terrorists. But it’s now clear that the government only has a good case against him for violating a presidential executive order in 1999 that made it illegal to provide services to the Taliban because they were aiding Al Qaeda. Similarly, he might also be guilty of conspiring to violate that order. Judge T. S. Ellis III ruled last week that the government needn’t establish which Americans in particular Lindh conspired to murder. But that doesn’t mean the government will not have to prove anything at all. To get a conviction on those top charges, prosecutors would at least have to show that Lindh agreed with someone, somewhere and somehow to kill Americans or to aid Al Qaeda. It now appears that the evidence on these counts, however, is somewhere between slim and none.

The government’s case, such as it is, is twofold: First, Lindh was caught fighting for the Taliban. Second, he allegedly confessed to FBI agents in Afghanistan after he was caught that he knowingly enlisted in Al Qaeda’s terror campaign against America. There seems to be no other witness or other evidence of those charges. Indeed, the government conceded in papers filed on March 29 that “the bulk of the evidence… comes from Lindh’s own admissions.” But Lindh’s lawyers now claim that:

These are just assertions by Lindh’s lawyers. What’s more persuasive to me is how prosecutors answered them in papers filed on March 29–particularly the claims related to his confinement on that stretcher for three days in that metal container. The prosecutors don’t deny the charges at all. Rather, their responses got them some good bounce in the press last weekend–but suggest they don’t have real answers: Lindh got the same rations that American troops got, the prosecutors note. A surgeon removed a bullet lodged in his leg. And he got not one, but two haircuts, because he complained about the quality of the first one. All of which might have been true and good for some sound bites, but the surgery and the haircuts took place after Lindh was removed from the metal container, which happened only after he gave the FBI the confessions they apparently wanted.

The Virginia district where Lindh will be tried is known as being prosecutor-friendly. But that doesn’t mean judge and jury will roll over, especially when faced with a defense lawyer, Brosnahan, who’s as corporate-establishment as they come, and who can appeal to the most conservative juror’s duty to conserve the rule of law. I’d bet against Lindh’s getting convicted of the top charges–conspiracy to murder Americans; if he is, I’d bet that conviction wouldn’t survive an appeal.

However, the lesser charge of aiding the Taliban, which could result in a sentence of up to 10 years, does seem strong. This probably means that the prosecutors will plea-bargain generously–or end up losing on most counts. Either way, the government seems destined to fall well short of what Attorney General John Ashcroft promised in announcing the indictment–that Lindh could be sentenced to life, or maybe even hit with additional charges that carry the death penalty.

President Bush has been a master at managing our expectations about the war. He and his people should now be managing our expectations at home when it comes to courts and juries. First, they should remind us that punishing terrorists who want to die anyway, let alone punishing John Walker Lindh, is not nearly as important as the battle to harden our defenses and eliminate terrorists before they can act. Second, rather than allowing their understandably zealous prosecutors to overcharge and “throw the book” at any bad guy seemingly connected to September 11 so that we can enjoy uplifting indictment press conferences only to be let down by the verdicts, they should be helping us prepare for what could otherwise become the most frustrating lesson of all from September 11–which is that some of the bad guys are not going to get the punishment many of us viscerally want them to get. Rather than treat the legal system that produces that result as the enemy, they should embrace it. They should remind us that one of the reasons we are a country that terrorists want to destroy is that we believe so much in freedom that we put a premium on the government’s not taking anyone’s freedom away based only on the emotion of the moment.