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One morning in April, James Brosnahan sleepily shut off his alarm clock and clicked on the television set. The first words he heard were “Brosnahan, that liar.” Bill O’Reilly, of the Fox News show “The O’Reilly Factor,” was denouncing Brosnahan’s representation of John Walker Lindh, the Californian who fought with the Taliban in Afghanistan. “I had lived my life without the pleasure of meeting O’Reilly,” Brosnahan chuckled, adding that he found the conservative commentator’s diatribe “hilarious.” While Brosnahan, a partner at San Francisco-based Morrison & Foerster, has handled several high-profile cases during his 43-year career, the Lindh case was in a category of its own. In addition to intense media coverage — Brosnahan said he and his colleagues fielded 250 calls a day — the prosecution of Lindh was woven around the Sept. 11, 2001, terrorist attacks. The highest levels of the Bush administration played a role in formulating the charges against Lindh. And attorneys on both sides scrambled to apply the laws to an unprecedented situation. The MoFo team argued that Lindh was not involved with the terrorist attacks on the World Trade Center and Pentagon but served only as a foot soldier of the Taliban in its war with the Northern Alliance. “John Lindh’s case should have nothing to do with Sept. 11,” said MoFo partner George Harris, who was part of the defense team. “He never supported or was involved in terrorism, but that was the link made.” Lindh’s attorneys did win a victory of sorts in getting Lindh legally separated from the Sept. 11 attacks. In a plea agreement signed July 15, the government dropped nine of 10 charges in the indictment against Lindh, including the charge that he conspired to kill U.S. citizens. Lindh agreed to plead guilty to the charge that he supplied services to the Taliban. He also pleaded guilty to a separate charge of carrying a semiautomatic rifle and two hand grenades while carrying out these services. Under the deal Lindh will serve 20 years in prison. There is no parole under the federal system, but prisoners can receive a 15 percent sentence reduction for good behavior. The 21-year old Lindh could thus get three years sliced off his sentence. The MoFo team, which also included of counsel D. Anthony “Tony” West and associate S. Raj Chatterjee, felt this was the best deal since Lindh was facing three life sentences plus 90 years, and a jury verdict acquitting him of all charges was pretty much an impossibility. “Do I think it’s fair or just or right?” Harris said. “No, I don’t think it is given who he is, what he did, given how the case was tried and the decisions the court made.” Sam Dibley, a spokeswoman for the U.S. Attorney’s Office in Alexandria, Va., said prosecutors could not speak about the case since it is still ongoing. The U.S. District Court for the Eastern District of Virginia is scheduled to sentence Lindh on Oct 4. At that time the court will also decide the prison in which he’ll be incarcerated. His lawyers are requesting that he be placed in a prison that can ensure his safety and is reasonably close to his family. Harris believes the Bush administration was eager to enter a plea deal because of political concerns about Lindh’s treatment while in custody. The deal specifies that the military did not intentionally mistreat Lindh. Harris said the provision was clearly important to the administration since Secretary of Defense Donald Rumsfeld cited it in press interviews that day. UNSETTLED LAW A number of legal questions at the center of the Lindh drama remain unresolved. Most notably, MoFo lawyers say, is the question of when a soldier is a legal combatant subject to immunity from prosecution. Lindh’s defense team argued that he was involved in a conflict between the Taliban and Northern Alliance, not a nebulous war on terrorism. Under U.S. domestic law and the Geneva Convention, they said, an individual can’t be prosecuted for being a soldier on one side of an international conflict. MoFo hired two investigators, one of whom traveled to Yemen, Pakistan and Afghanistan. Brosnahan said their information confirmed that Lindh’s activities were restricted to fighting the Northern Alliance. The District Court concluded, however, that Lindh was an illegal combatant. Before the plea deal was inked MoFo lawyers were preparing to submit a writ to the 4th U.S. Circuit Court of Appeals challenging the ruling. Other unsettled legal questions included the application of due process — including the Miranda doctrine and Fifth Amendment rights. While the government argued that there should be a battlefield exemption to application of these rights, Harris said he and his colleagues contended that information obtained prior to a Miranda warning should not be used in a subsequent federal prosecution. In another legal strategy, the MoFo lawyers argued that the indictment against Lindh was selective prosecution since the government had never prosecuted anyone else for violating U.S. sanctions imposed against the Taliban in 1999. Specifically, they said Unocal Corp. hosted a delegation of Taliban officials to the United States in efforts to build a $1.9 billion pipeline through Afghanistan and Telephone Systems International Inc. won a $240 million contract to build a wireless telephone system for Afghanistan. They also cite the activities of Laili Helms, a niece of former CIA Director Richard Helms, who, they contend, is known as “the Taliban’s unofficial envoy to the United States.” The MoFo lawyers said they are particularly concerned about the broadening powers of the government post-Sept. 11. Brosnahan cited U.S. Attorney General John Ashcroft’s policy of detaining citizens without charging them or allowing them access to an attorney and his targeting of Arab store owners for interrogation. “What is law in times of war,” he said, “is the most important question facing the legal profession at the moment.”

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