Prosecution: Detention as an Enemy Combatant Isn’t Really Detention

Prosecution: Detention as an Enemy Combatant Isn’t Really Detention

These people have no shame:

Pentagon prosecutors are asking a military judge to reverse himself and reassemble the jury that convicted Osama bin Laden’s driver at Guantánamo, seeking to overturn a sentence that could make the first war court convict eligible for release by New Year’s Eve.

At issue is a decision at the first U.S. war crimes tribunal since World War II by the judge, Navy Capt. Keith Allred, to award credit of 61 months and eight days for time already served to Salim Hamdan, 40, of Yemen.

Prosecutors claim in a six-page motion, filed Sept. 24 but still not made public on Friday, that military commissions judges aren’t entitled to grant credit for time served as “enemy combatants.”

Three military attorneys separately summarized its contents for The Miami Herald.

A military jury convicted Hamdan of providing material support for terrorism on Aug. 6. At the sentencing phase, the panel specifically asked Allred how much credit Hamdan would get for time served. Allred said he had awarded credit of 61 months and eight days, time the judge calculated Hamdan was in a different status than a run-of-the-mill enemy combatant.

The jury of five colonels and lieutenant colonels led by a U.S. Navy captain then issued a 66-month sentence and returned to their different duties in different services across the U.S. military.

”The prosecution believes the judge had no legal authority to grant the credit,” said Air Force Maj. Gail Crawford, a commissions spokesman. “As to remedy, they asked the judge to set aside the sentence, reassemble and reinstruct the panel and have them resume sentence deliberations.”

I can’t imagine that Judge Allred will buy the prosecution’s baseless argument.  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 reasonable standard, Hamdan was in pre-trial detention from that point on.

There is also no reason to believe that the prosecution would get a longer sentence if Judge Allred reversed himself.  The military jury clearly wanted Hamdan to serve only five additional months in detention — hence its question about the credit Hamdan would get for time served.  In all likelihood, therefore, it would simply re-sentence Hamdan to five months imprisonment after a new sentencing hearing.

Of course, the length of Hamdan’s sentence has little practical import.  As the article notes, “Bush administration detainee doctrine says that ‘enemy combatants’ can be held indefinitely, regardless of a conviction or acquittal at the war court.”

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International Criminal Law, International Human Rights Law, National Security Law
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