31 Oct Hamdan’s Sentence Stands — As It Should
As I predicted a few weeks ago, Judge Allred has refused to reconsider Hamdan’s sentence in light of the Bush administration’s argument that he was not entitled to credit for the time he served as an enemy combatant:
A military judge has refused to reconsider the sentence of Osama bin Laden’s former driver, forcing the Bush administration to either release a man it insists is a dangerous terrorist in two months or continue to hold him at Guantanamo Bay as an enemy combatant despite his having served his time after a trial and conviction.
Salim Ahmed Hamdan, 40, a Yemeni captured in Afghanistan in late 2001, was sentenced in August to 66 months for providing material support for terrorism following his conviction by a jury of six officers. But the jury knew that the judge, Navy Capt. Keith J. Allred, planned to credit Hamdan 61 months and eight days for the time he had already been held at the military prison in Cuba.
Prosecutors had sought a 30-year sentence, but the jury, unconvinced that Hamdan was anything more than a low-level al-Qaeda figure, came back with a sentence that ostensibly allows Hamdan to be released Dec. 31.
Military prosecutors argued that Allred erred in deciding that Hamdan was entitled to credit for time held. In a ruling Wednesday, which was released yesterday, Allred refused a government motion that he reassemble the jurors and tell them Hamdan is entitled to no credit.
The government has argued that Hamdan’s status as an enemy combatant is separate and independent of any trial for his violation of the laws of war. U.S. officials said that would allow the United States to continue to hold Hamdan beyond Dec. 31. But such a step would likely lead to criticisms that the military commission trials at Guantanamo are meaningless.
Judge Allred was right to reject the government’s ridiculous argument. As I noted in my previous post, the Judge did not credit Hamdan with all of the time that he spent in detention as an enemy combatant, only the time he spent after he was made eligible to be tried by a military commission. By any standard, that 61 months and eight days qualified as pre-trial detention.
ADDENDUM: Is it just me, or does the article read like something from the early days of the war on terror? We know full well that the Bush administration isn’t going to release Hamdan — it’s admitted as much on numerous occasions. And does anyone really believe that the administration cares at this point what the public thinks about the fairness of the military commissions? That horse is long since out of the barn, across the field, and into the glue factory.
In order to hold the trial at all, the commission first held a several day hearing to determine if Hamdan was an “unlawful enemy combatant”. They found that he had carried weapons (anti-aircraft missiles) close enough to the location of a battle to be classified as a civilian unlawfully participating in combat. It seemed to be a procedural step, but that finding is every bit as significant as the final guilty judgement and sentence. Once he has served his criminal sentence, he is still an unlawful enemy combatant subject to military detention for the duration of hostilities. There is no legitimate basis to focus exclusively on one finding of the commission and pretend the other finding was never made. Many of the detainees are soldiers of the Afghan army captured in Afghanistan or Pakistan. The administration irrationally claims that they are “unlawful” combatants because it refuses to recognize the legitimacy of the Afghan army. Hamdan is the one detainee who has consistently claimed he was a civilian employee of the army, not a solider or an innocent bystander. He was captured carrying the missiles by US soldiers who testified to the commmission. The judge’s decision that the location of the battle was close enough to the… Read more »
Two German soldiers are captured in 1942. One served honorably, one is captured with small items he stole from a church. The second is tried in a military court, convicted for theft, and spends a two year sentence in military prision. When the sentence is over, do we release him in 1944 even though the honorable solider who stole nothing will not be released until the war is over? Of course not. He will be released from military prison and returned to the POW camp. So why today are people so foolish to imagine that someone convicted of an offense against the laws of war should be released sooner than honorable soliders who followed the law?
“Is it just me, or does the article read like something from the early days of the war on terror?”
Heh. It’s just what Yogi Berra once described as “deja vu all over again.” The government presses their fraudulent arguments just as far as they possibly can, and when they lose they go back to the drawing board and cook up a new fraudulent argument to the effect that they were right all along and the opinion that rejected their previous fraud actually supports them. Here’s a recent little sample of the art from the DDC…
In re: Guantanamo Bay Detainee Litigation, No. 08-mc-442 (TFH), RESPONDENTS’ MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETURN (2008.10.30), see:
http://www.pegc.us/archive/In_re_Gitmo_II/gov_mot_to_amend_20081030.pdf
And meanwhile, cheerleaders like Howard go on cheer-leading for them with their fictional accounts of the “laws” of war. The truth is that enemy combatants are folks who are protected by Geneva III, everyone else is just a civilian accused of a crime, and I really wish that folks like Howard would just read the definitions of the words and maybe look at the actual laws they claim to be citing.
The sheer delusional dishonesty of these people was tedious long ago.
Actually, one has to wonder whether the authors of the Geneva Convention really foresaw a conflict that could last for decades. After all, history contains at least one example of a hundred-year war.
Should being captured on the field of battle, having violated no laws of war, as in our WW2 hypothetical, really result in an effective life sentence?
Charles, can you please cite an article in Convention III which says a convicted POW shall be released as soon as he’s done serving his sentence, and not after the cessation of the hostilities?
(Actually, after reading what you said again, it seems I had misunderstood; but if I hadn’t, you’re more than welcome to answer the question)
Guy, let me lay it out for you… A POW is a POW by virtue of meeting the criteria specified by Geneva III arts. 4-5. A POW may not be tried or punished for any act committed pursuant to lawful military operations which might otherwise be considered crimes under CIVIL law, such as assault, vandalism, murder, etc. This is known as the “belligerent’s privilege” and is based on the concept of “military necessity” first enunciated as such by the Lieber Code (US War Dept. General Orders No. 100) of 1863. A POW nevertheless may be tried and punished for war crimes, i.e. violations of the laws of war, which in the here and now are mainly codified by Hague IV 1907, the IMT Charter (“Nuremberg Principles”) of 1945, and Geneva 1949. An unprivileged belligerent is entirely subject to the ordinary CIVIL laws — they are CIVILIANS BY DEFINITION, and the proper penalty for such acts is a fair trial for the alleged crime. There are certain provisions in Geneva IV Civilians that allow for preventative detention of persons suspected of being a danger, but they do not extend to indefinite detention, nor do they countenance torture or abuse. None of… Read more »
M. Gross, what I wonder is how anyone could be so foolish, especailly when they themselves so often claim that such a thing was unimaginable before 911 “changed everything”. They simply display their own ignorance of history. The Thirty Years War was a lot worse than the Hundred Years War. The Punic Wars were 264 to 146 BCE. The crusades were 1095 to 1272. Do you suppose the what happened in 1939 had anything to do with the events of 1914 or 1870? How many people were executed as heretics or witches becasue people thought they were fighting an eternal war against Satan? And how many of the fake Christians who support murderous criminals like George W. Bush still believe that, and that it will only end at the second coming of Christ? Gee, you’d think they might at least remember the Cliff notes for Hume’s Leviathan or something. Such statements are silly, and only show the naivety (or dishonesty) of those who make them. I defy anyone to read Pictet’s commentaries on Geneva and suppose he was naive. I’d say the same for guys like Martens, Winthrop, or Lieber, or Grotius, etc. Those guys new alot more about histroy… Read more »
Charles, thanks for the explanation, even though I already knew most of the things you said. But unlawful combatancy is not as simple as you put it, even if most scholars agree with you. On the other hand, the American stance on Gitmo detainees isn’t really stable.
By the way, you can skip the rhetorics (“murderous criminals” and so on).
Well Guy, I think “unlawful combatancy” is every bit that simple: a criminal act is a criminal act, an indictment is an indictment, a fair trial is a fair trial, and a just verdict is a just verdict.
Equally, a ruler who claims the power to kill or imprison people for life by fiat at their sole discretion is just a criminal like Stalin, Hitler, Charles I, Caligula, or any of the other tyrants who have afflicted humanity throughout the “civilized” era — and unvarnished statements of fact are not rhetoric. I’ve investigated Mr. Bush and his gang for seven years now; their crimes are evident beyond any doubt on the strength of their own public record.
The Eisentrager decision, as referenced in the more recent Boumediene decision, declares that it is a universally recognized practice in time of war for a military to detain, at its sole discretion, both enemy soldiers and enemy civilians for the duration of hostilities. In theory any enemy civilian citizen could be detained, but in practice this is typically limited to those employed by the enemy army (like Hamdan), or those who swear loyalty to enemy military commanders (like Hamdan did), or those who unlawfully engage in combat (like Hamdan did). No trial is required to detain such civilians for the duration of hostilities just as no trial is required to detain a POW. During the trial, Hamdan requested but was denied status under the Third Geneva Convention which does not require citizenship. The Fourth Convention certainly applies to enemy citizens, but in this case it may extend to citizens of neutral third countries when they are employed by the enemy army, pledge loyalty to the enemy army, and engage in combat for that army. Assuming the Fourth Convention applies, Hamdan is protected from murder, rape, pillage, and may not be used as a human shield. He is entitled to food… Read more »
<i>”In theory any enemy civilian citizen could be detained…”</i>
Oh listen to you. Can you cite any actual authority for that assertion?
The Lieber Code, Hague and Geneva sure don’t support you.
More to the point: there are no citizens of al Qaeda who might be properly interned as enemy aliens, for the simple reason that al Qaeda is not a nation, it’s merely a criminal conspiracy the same as any other criminal conspiracy — the Mafia or the Republican Party for example.
This isn’t complicated Howard: the only real issue is whether you Republicans prefer the legal principles of Nazi Germany and the Soviet Union to those of the US Constitution, and the answer is disgracefully obvious.
And so are Bush and Cheney at this point. They are liars. They are incompetents. They are demented ideologues who have no real understanding of anything. And above all they are MURDEROUS CRIMINALS who have killed more innocent people than Al Qaeda has.
I just don’t have words to describe how fed up I am with these dishonest apologies and alibis for these disgraceful war criminals. You people should be ashamed of yourselves.