Legal News

Why Does the Government Want Hamdan?s Sentence Reconsidered?

By Dan Slater

Salim Hamdan at the legal complex of the U.S. Military Commissions, Guantanamo Bay, Cuba, July 24, 2008. (AP Photo/Janet Hamlin, Pool, File)

When we last left Salim Hamdan — the former driver for Osama bin Laden who faced a Gitmo military commission over the summer — he’d come away with what many viewed as a victory for Hamdan and another big setback for the government’s terrorism prosecutions. With time served, Hamdan would walk out of Guantanamo in December.

Still, prosecutor John Murphy, a DOJ attorney, called the decision “a victory for the system.”

But as the WSJ’s Jess Bravin reports, on Sept. 24 prosecutors filed a motion asking that Hamdan’s sentence be reconsidered. The Defense Department released the document yesterday, after inquiries by the WSJ.

The basis for reconsideration? The motion, reports Bravin, contends that the military judge lacked authority to credit Hamdan for the time he served in pretrial confinement. Without such credit, Hamdan, who was captured in November 2001, would face an extra five years. The chief Gitmo prosecutor, Col. Lawrence Morris, claims that, unlike courts-martial, military commissions cannot credit defendants for time served.

“The length of the sentence is a matter of indifference to us,” Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could resentence him to however many days remained until then.

Hamdan’s defense lawyer, Lt. Cmdr. Brian Mizer, said: “I really am at a loss for words. The government, having stacked the deck, is now complaining about the hand it was dealt.”

This is a fascinating development. A civilian lawyer for Hamdan told the WSJ that be believes the government is attempting to postpone the release date into a new administration. But Hamdan’s trial was meant to be the guinea pig of Guantanamo’s military commission experiment. Thus, we can’t help but wonder whether the government is merely worried that other Gitmo detainees — as many as 80 could still face the tribunals — could wind up with reduced sentences due to time served. Law Blog readers, what say you?

Full post as published by Law Blog - WSJ.com on October 17, 2008 (boomark / email).