Johnnie Walker (Lindh), Still On The Rocks

Legal Analyst Andrew Cohen Says John Walker Lindh Is Victim Of Bad Timing, Deserves Better Deal

(CBS) 
And, unfortunately, Lindh cannot speak for himself. When he was transferred to civilian control after his capture, the government placed him into a category of terror suspects who are subject to what the feds call "Special Administrative Measures" designed to ensure that inmates cannot communicate with the outside world. Even though Lindh long ago pleaded guilty, and even though federal prosecutors at the time pledged that they would work to remove the SAM muzzle, Lindh remains subject to the gag order. By contrast, Hicks, as part of his plea deal, was gagged by our military officials for one year — a decree that Australian officials are saying they may not be able to enforce anyway.

These restrictions are as onerous as you can imagine and made worse by the Bureau of Prisons' unilateral (and some say arbitrary and capricious) ability to transfer Lindh from hither to yon within the federal prison system. He started out in California. Right now he is at the Supermax facility in Colorado. Soon he may be on the move again. Anyone out there believe that Lindh is such a threat to national security or to whatever prison population he inhabits that he warrants this sort of treatment? Anyone think Lindh has any interest in reaching out to some former Taliban confederate somewhere?

None of this is to say that Lindh is blameless for his miserable lot in life. He made a series of bad choices — the one where he stayed with the Taliban even after 9/11 is among the worst — and he has been paying for them ever since. But there are plenty of people walking the street today, in America and Yemen and soon in Australia, who made similarly bad choices. And the government has made its own series of choices — to set Hamdi free rather than be embarrassed by putting him on trial, to give Hicks a deal rather than tick off our Aussie allies — that make Lindh's punishment seem so draconian that if it weren't real you would think it were part of a Russian novel.

If Lindh is a victim, he is a victim of bad timing. In 2001, he was in the wrong place (Afghanistan) at the wrong time (when Johnny Michael Spann was killed) and, in 2002, he was in the wrong place (federal court in Virginia) at the wrong time (soon after 9/11). If he began his way through the federal court system today with the same facts that existed back in 2002, there is no way that he would come out the other end with a 20-year prison sentence. That alone shouldn't make the current president, or the next president, cut him some slack. But it shouldn't hurt, either. Sooner rather than later, and certainly before 2019, John Walker Lindh deserves to return to the world, having paid an already steep price to our society for a terrible crime of judgment, not violence.