Federal Judiciary

Hamdan sentence stays as is

By Akin Gump Supreme Court Practice Group

A military commission at Guantanamo Bay refused on Wednesday to reconsider the sentence it imposed on a Yemeni national, Salim Ahmed Hamdan, after his conviction in August.  In an order made public Thursday, the commission simply declined without explanation the military prosecutors’ request to reassemble the military jury and order it to consider a sentence without giving Hamdan credit for part of the time he has been held at Guantanamo.  The order can be found here.  It was issued by the presiding officer at Hamdan’s trial, Navy Captain Keith J. Allred.

Hamdan was convicted of providing support to terrorists; he has often been described as a driver for Osama bin Ladin.  He was sentenced to 66 months in military prison, but that was reduced to four months and 22 days because the commission jury gave him credit for 61 months and eight days for part of the time he has been detained by the U.S. military.  He is now due to finish his sentence by Dec. 31.  What happens to him after that may depend on how his habeas challenge to continuing detention — on hold in District Court while his commission trial went forward — is ultimately decided.

Under the Military Commissions Act of 2006, which governs trials such as Hamdan’s, it does not appear that the prosecution may appeal the sentence, including the credit for time in detention.  The Act specifies that, after the trial is over, a sentence may not be found to be in error unless the error “materially prejudices the substantial rights of the accused.”

Hamdan’s lawyers have argued that his rights were not harmed by cutting time off of his sentence for past detention.

A post discussing the controversy over Hamdan’s sentence can be read here. The prosecutor sought a new sentence that, it said, would be no longer than the 66 months the jury originally imposed. That would mean that Hamdan would have to remain in military prison for the remaining 61 months that the credit represented.

Full post as published by SCOTUSBLOG on October 30, 2008 (boomark / email).