Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
We were reminded this week that the story of John Walker Lindh, the so-called American Taliban, is the story of how our legal system and those who run it can be both just and unfair.
There was nothing inherently unjust about Lindh's 20-year prison sentence at the time it was imposed in 2002. The young man and his earnest family made the deal — Lindh pleaded guilty to materially supporting the Taliban — because he feared an even longer sentence following a trial before a particularly stern judge in federal court in Alexandria, Va., in the shadow of the then-rebuilding Pentagon. It happens all the time, this weighing of the risks and rewards, and few people today remember with great clarity the dark atmosphere of fear and revenge and anger that pervaded this country six months after the Twin Towers fell.
But events since those darks days in the spring of 2002 — events and actions and choices by the federal government — demonstrate overwhelmingly today that Lindh's punishment is disproportionately harsh and unfair. Other low-level "terror" suspects have confessed to providing support to terror organizations — as that phrase is broadly defined under our law. They arguably acted as poorly, or more poorly, than Lindh but received slaps on the wrist from the feds — or outright release from confinement and custody. Lindh? He is looking to get out of federal prison sometime around the year 2019.
Lindh's life-is-unfair story came back onto the front burner this week because of the sweetheart deal that received from U.S. military officials presiding over the terror suspect tribunals down at Guantanamo Bay, Cuba. Having already spent several years in custody as a foreign combatant, Hicks pleaded guilty to knowingly assisting a terrorist organization as part of a larger deal that saw him receive a nine-month prison sentence that he is to serve in his native Australia. For the rest of his sentence he was given "time served" treatment by our government.
Like Lindh, Hicks was apprehended overseas. Like Lindh, Hicks was initially accused of being a terrorist. Like Lindh, the government eventually narrowed the charges down to providing material support to the Taliban. Neither man fired a shot in anger at U.S. troops. Neither man committed an act of terrorism. Lindh is an American citizen who received full due process rights in our federal court system. Hicks is an Aussie — a kangaroo-skinning Aussie, no less — who received few rights under the government's ever-evolving military tribunal procedures. Anyone want to argue that Lindh deserves to spend four times as long in prison as Hicks?
Let me offer an even starker example of the unfairness of Lindh's plight. Take the case of a U.S. citizen named Yaser Esam Hamdi. You may remember the Yemeni man as the first and original "enemy combatant" designated so by President Bush in order to ensure that Hamdi would be kept indefinitely and incommunicado and without charges in military confinement. Hamdi's lawyers were able to get his case to court and the United States Supreme Court, in 2004, declared that the government had to give Hamdi more due process rights than it had given him to that point. Faced with the real possibility that the courts would order Hamdi to be released after two years of confinement, and unwilling to charge him in our civilian courts, the feds simply said "never mind" and allowed Hamdi to return to Yemen. Anyone want to argue that Lindh deserves to spend 10 times as long in custody as Hamdi?
Because Lindh's plea deal is rock-solid, his lawyers have few legal avenues to tread upon as they try to figure out a way to get him out of prison. That's why lead attorney James Brosnahan on Wednesday again asked President Bush "as a simple cry for justice" to commute Lindh's sentence. But that won't happen until and unless there is a groundswell of political and popular support for leniency for Lindh — and that clearly has yet to materialize. Hicks, the Aussie, wouldn't be where he is today without strong political pressure placed upon the White House by the Australian government. So far, no one is leading the charge in Congress to ride to Lindh's rescue, and the president has issued only three commutations in his tenure at the White House.
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