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Getting President Bush to commute the sentence of “American Taliban” John Walker Lindh is a long shot, former federal prosecutors say. But Lindh’s attorneys are making the play anyway, arguing that he should not be treated more harshly than others in his situation. Accompanied by Lindh’s parents, Morrison & Foerster partner James Brosnahan announced at a press conference Tuesday that he and his colleagues have asked President Bush to commute Lindh’s 20-year sentence. Under a plea agreement reached two years ago, Lindh agreed not to appeal his sentence. Brosnahan tied the request to the release of Yaser Esam Hamdi, who — like Lindh — was an American citizen caught fighting with the Taliban in Afghanistan. Hamdi spent three years in U.S. custody, but was scheduled to be released Tuesday after he agreed to renounce his U.S. citizenship and live in Saudi Arabia. “Most judges, most lawyers and most prosecutors believe comparable conduct should be treated in a comparable way,” Brosnahan said. “It seems to us as a matter of justice — and if I may use the word compassion — for the president to consider reducing John Lindh’s sentence.” Brosnahan stood next to a chart highlighting the similarities between Lindh and Hamdi and another illustrating the lower plea bargains reached in similar cases. Copies of the charts were handed out to a slew of reporters who gathered at MoFo’s downtown offices. But former federal prosecutors say it will be difficult for Brosnahan to get the Bush administration to tinker with the plea agreement. “I would opine that it is unlikely that anybody connected to the Taliban in any way would get his sentence commuted,” said David Shapiro, a partner in the Oakland, Calif., office of Boies, Schiller & Flexner. “It’s not typical for people in the White House to take that step.” Loyola Law School professor Laurie Levenson said she has wondered if the Justice Department agreed not to oppose a future petition for commutation at the time the plea agreement was struck. “The deal was done at the highest level,” Levenson said. “It wouldn’t surprise me if during the discussion” the department suggested that commutation was still available. Levenson said negative publicity about the administration’s mishandling of criminal cases in its war on terror could also help Lindh. Commuting his sentence could buy the administration some goodwill, she said. “Brosnahan is masterful in pointing out how this could be advantageous to the administration,” said Levenson, a former assistant U.S. attorney. But, she added, “Even for him, it’s a real uphill battle.” Lindh’s lawyers submitted the petition to DOJ pardon attorney Roger Adams, who makes recommendations to the president as to the action he should take. The DOJ would not comment on the merits of the petition. “John Walker Lindh pleaded guilty to supporting the Taliban,” said DOJ spokesman John Nowacki. “The Taliban was a brutal regime that harbored and supported al-Qaida.” Nowacki added that as part of his plea agreement, Lindh had agreed to cooperate with the U.S. government in its war on terrorism. He declined to comment on whether Lindh was testifying in military trials against prisoners held at Guantanamo Bay, as reported in the Oct. 2 issue of Time magazine. Brosnahan said the article was incorrect and declined to comment further on it. Reporters asked the renowned litigator if he had made a mistake in agreeing to a 20-year sentence for Lindh, who had faced life in prison. The government dropped nine of 10 charges against the then 21-year-old Lindh, including the charge that he conspired to kill U.S. citizens. He pleaded guilty to providing services to the Taliban. Brosnahan said the deal was reached when emotions were raw after the Sept. 11 terrorist attacks. The case would have gone to trial in a courtroom a few miles from the Pentagon. “The jury panel in the summer of 2002 was in the highest state of fear, concern, anger and mourning about what had happened in the Pentagon a few months before,” Brosnahan said. “In that atmosphere, we did what we thought we had to do.” Brosnahan said there is precedent for getting a commutation. He noted the case of Tokyo Rose, a woman who appeared on the radio during World War II encouraging allied forces to join the side of the Japanese. She was charged with espionage and eventually pardoned. But the current political environment isn’t in Lindh’s favor, said another former federal prosecutor. “It seems like the need to glorify all forms of hostility against Afghanistan, al-Qaida and Iraq is a political need of this administration,” said Elliot Peters, now a partner at Keker & Van Nest. “It seems unlikely they will let up on John Walker Lindh.” Peters said Brosnahan — who said at the press conference that he would never stop fighting for Lindh — is probably troubled by the plea deal. “Jim is a great lawyer, but also a feeling person. He has a young client and took a tough deal because he had to. He probably stays up at night thinking of ways to make it better, undo it,” Peters said.

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