Colonel Morris Davis on the Hamdan Sentence

by Kevin Jon Heller

Salim Hamdan has been sentenced to 66 months in prison, far short of the 30 years-to-life sentence the prosecution requested.  Good news for Hamdan? Probably not, as Colonel Morris Davis — the third chief prosecutor of the military commissions, who resigned because of political interference by the Pentagon — pointed out in the comments to my ex post facto post:

The jury sentenced Hamdan to 66 months.  The judge gave him credit for nearly 61 months of time served, so he has less than 6 months remaining on his sentence.  Hamdan won in the Supreme Court in 2006 and ended up back in his cell.  He won again a little over a year ago when Judge Allred dismissed charges because the word “unlawful” was missing from the CSRT determination, which is required for MCA jurisdiction.  Again, Hamdan won but ended up back in his cell.  This time he lost, but in the end losing may equate to winning.  It remains to be seen whether the administration intends to keep Hamdan past the end of his sentence; doing so begs the question of why we even bother to hold trials.  If you look at Hicks (9 months) and Hamdan (<6 months) it suggests the best way to win at Gitmo is to lose.

In the time since Col. Morris posted his comment, the Bush administration removed any doubt that Hamdan isn’t going anywhere: earlier today a Pentagon spokesman stated that Hamdan will “still be retained as an enemy combatant,” his only hope for release “the annual review board process to determine whether he’s eligible for release or transfer.”

3 Responses

  1. It is interesting that this sentence means that it will not be this administration, but the next one, that will decide on Hamdan’s status as an enemy combatant

  2. That is probably very fortunate for Hamdan.

    Let’s hope they release him after his sentence, although that does involve finding a country to release him to…

  3. Hamdan’s sentence seems to be like the Hicks plea agreement a encouragement for him to not appeal with the ARB possible release.  His term will expire just before the January inauguration of the next President in case no one noticed.  If anyone thinks that calculation of the time left was made innocently, then someone does not know Washington politics.

    If Hamdan does appeal through the full process to the Supreme Court, something that I would encourage him to do, then it is certain the ARB’s will attempt to hold him indefinitely at least up through the next President and all his appeals are done.

    Hamdan is put in front of a dilemma – appeal and risk adverse ARB’s or do not appeal and acquiesce in what is happening to you so that you can get a favorable ARB and get home to your family and kids.  For someone who has been through a great deal, I would imagine he might want to resist appealing to get home sooner.

    That, of course, is why his prosecution first is perfect.  The evidentiary decisions made are ones that assure that others will also be convicted.  It allows for a precedent of sorts that may be persuasive and lead to “settled expectations” for the next military tribunal or so when the people being accused are “bigger fish.”

    You win by losing means simply acquiescing in your fate in the kangaroo system that you are in. If you do that, then you are allowed to see freedom.  If you resist in the system, the system will just keep trying to grind you down by any means necessary.

    That is the message -d’ont f*ck with the United States even when we act bad.  That is why it is important for Americans to stand up and say “this is not the United States, this is not me.  I am not a torturer.  I believe in the rule of law.  I believe in fair trials and not kangaroo procedures.”  But, since persons labeled terrorists are to be despised then we are hesitant to “stand out.”  More going along to get along.


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