Defense Was Willing to Strike a Deal, and Did

The talks that led to John Walker Lindh’s surprise plea agreement Monday started weeks ago, slowly and secretly, but ended with a dramatic flurry of activity that included a late-night run to a county jail for his signature and a call to the White House to brief President Bush.

After Lindh’s capture on a battlefield in Afghanistan in November, it appeared that both sides would press for a highly visible trial that would bring into a public courtroom both the nation’s war on terrorism and the bizarre odyssey of an affluent and youthful seeker from Marin County.

But as both legal teams prepared for battle, the notion of an out-of-court settlement was floated in early June--not by the Justice Department or Lindh’s high-profile San Francisco lawyer, James J. Brosnahan.

A Benign Beginning

It began, both sides recalled Monday, almost accidentally, with a casual conversation between a top federal prosecutor who had nothing to do with the Lindh case and an acquaintance of Brosnahan in San Francisco.

Word got back to the Justice Department that, despite his combative stance with regard to his client, Brosnahan might be willing to consider a deal. Brosnahan was told that federal prosecutors also might be willing to talk.

Brosnahan said he then telephoned David N. Kelley, a special prosecutor on the Lindh case. In recent years, Kelley had won major legal victories in high-profile terrorism cases as chief of the Organized Crime and Terrorism Division of the U.S. attorney’s office in New York.

But Brosnahan said he also knew Kelley to be a reasonable prosecutor.

“I like Dave,” Brosnahan said. “He’s a good guy, and he does his job. And I called him and I said, ‘Well, is there anything to talk about?’ ”

After that, Brosnahan said, “one thing led to another.”

Kelley could not be reached for comment, but one senior Justice Department official involved in the negotiations said defense lawyers always try to strike a deal for their client. He said Justice Department officials were surprised to learn about Brosnahan’s interest, given his public criticism about the lack of evidence against Lindh.

“Word came to us and as a result, we did have a conversation with Jim and found out what he had in mind and a reasonable way, in his view, of settling this,” recalled the Justice Department official, who asked not to be identified.

“I don’t know what’s going to come of it,” Brosnahan said he told Lindh at the time. Lindh is being held in a local jail in Alexandria, Va.--just a few miles from where one of four hijacked planes was crashed into the Pentagon on Sept. 11.

Lindh’s handful of lawyers soon submitted an informal proposal, and Kelley and Assistant U.S. Attys. Randy I. Bellows and John S. Davis went to work on a response, with input from U.S. Atty. Paul J. McNulty.

The deliberations--even the fact that the two sides were talking--were a closely held secret.

Even so, many of the individual points of contention had to be vetted not just by the Justice Department, but by the Pentagon, the CIA, the White House and other agencies.

Federal prosecutors refused to budge from a baseline penalty of at least 20 years in federal prison, sources said. Some U.S. officials insisted that Lindh drop claims that he had been mistreated and that his civil rights had been violated during his interrogations. Lindh’s lawyers wanted removal of all claims that Lindh was a terrorist who knowingly helped Osama bin Laden.

For nearly a month, federal prosecutors worked to craft the proposal. On Thursday, President Bush was briefed on the terms of the agreement and gave his blessing, Justice Department officials said.

On Friday, the proposal was given to Lindh’s legal team immediately after a contentious hearing before the presiding judge in the case, U.S. District Judge T.S. Ellis III.

The defense appeared open to negotiations, sources said, since Ellis had indicated he was going to limit their attempts to suppress allegedly incriminating statements that Lindh had made after his capture.

A week of hearings had been set to start Monday. Defense lawyers felt that, given Ellis’ Friday ruling, they would most likely lose several other motions as well.

After the hearing Friday, the two sides went next door to the U.S. attorney’s offices and sat down to negotiate.

“Once we started talking, we never had a period of time where we were not talking,” said the senior Justice Department official. “We were back and forth continuously.”

McNulty and Assistant Atty. Gen. Michael Chertoff were personally involved in the marathon sessions, which at times grew contentious. The insistence that Lindh deny his claims of mistreatment was a particularly thorny issue.

“That certainly took some work to get in there,” said the Justice Department official.

“Anything, even the slightest changes” had to be run up the flagpole, the official said. Some details went all the way to the White House.

The Final Papers

By Sunday evening, the Justice Department team was drawing up the final papers, including an additional charge stipulating that Lindh was carrying explosives in the commission of a felony--a charge that carried a mandatory sentence of 10 years.

As Justice officials summoned Lindh’s lawyers, another call was made to the White House to alert Bush to the final details before the deal was struck.

Defense lawyer George C. Harris scrambled to get the 12-page agreement to the Alexandria jail shortly after 10 p.m., where Lindh promptly signed it.

“He was calm about it,” Harris said. “Just as he’s always been throughout this case, he was very respectful and very helpful. He is a young man and wants to get on with his life.”

After that, prosecutors spent much of the night tying up loose ends so that the deal could be announced and approved in court Monday morning.

McNulty had no comment on the behind-the-scenes legal wrangling. But he said the 60-plus hours of negotiations paid off.

“It was worth the time and effort because it was worth the resolution for the American people,” McNulty said.