There was a time when it seemed that John Walker Lindh was the lucky one. He actually had a chance to defend himself, in an American court, against terrorism charges (which were dropped). He wasn't locked up in Guantanamo or held incommunicado in a Navy brig. He wasn't tortured. He pleaded guilty in open court to lesser charges stemming from his service in the Afghan army - that is, the army of a government controlled by the Taliban - and was sentenced in October 2002 to 20 years in a federal prison.
But five years have passed and it's starting to look as though he got a raw deal after all, considering the mildness of his crime. His family has asked President Bush to commute his sentence; it would be surprising, but gratifying, if they got their wish.
Plenty of people squawked in 2002 over what they saw as lenient treatment for the "American Taliban." They called him a foot soldier for Osama bin Laden and a traitor, though he had actually taken up arms in Afghanistan's seemingly endless civil war; this was before 9/11. Captured when the Taliban fell, he was at a prison in Mazar-e Sharif during a violent uprising in which a CIA officer, Johnny M. Spann, was killed. Shortly after, he was returned to the United States.
A poll of potential jurors in Northern Virginia, where he was to stand trial, showed that 40 percent wanted to give him the death penalty, his lawyer, James J. Brosnahan, says. At the time, reduced charges and a 20-year sentence looked reasonable by comparison.
Since then, the context has changed.
It was difficult to foresee, in 2002, just how reckless the government would be in its pronouncements and accusations about those it deemed terrorists. There have hardly been any successful prosecutions. Scores of prisoners have been released from Guantanamo, including, most recently, David Hicks, who provided material support to terrorists, which is a far more serious crime than Mr. Lindh admitted to, and who is now headed back to his native Australia to serve just nine more months in prison. "Justice is about proportionality," says Mr. Brosnahan.
The government pounced on Mr. Lindh at a time when he could serve as a useful poster boy for the insidious threat of terrorism. It's fair to ask now how much of that was overblown. He hardly fits the role. At 26, he's mild-mannered, cooperative, studious, still a believer in Islam. After five years at a prison in Victorville, Calif., he was inexplicably transferred to the Supermax pen in Florence, Colo., last December, where he is in solitary 23 hours a day. A commutation wouldn't absolve him of his crime - it would merely be recognition that the time he has served is quite enough.