Johnnie Walker (Lindh), Still On The Rocks

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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 Australian detainee David Hicks 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.

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.

By Andrew Cohen