Hamdan receives light sentence; could force enemy combatant test

A military jury in Guantanamo Thursday gave Salim Hamdan a surprisingly light sentence of 5 1/2 years. And since Hamdan has already been imprisoned at the Navy base for five years, his sentence would be completed sometime next year.

Hamdan was convicted Wednesday of providing material support to terrorists, but was acquitted of the more serious charge of conspiracy. In essence, the six-member jury did not buy the Pentagon’s argument that Hamdan, a former driver for Osama bin Laden in Afghanistan, was a key operative of al Qaeda.

But the Pentagon has made clear that intends to hold Hamdan as an enemy combatant beyond the time his term ends. The Defense Department maintains that it can hold foreign nationals who have been classified as enemy combatants as long as hostilities continue. In a global war on terror, of course, it’s difficult to say when exactly that point might be reached.

And as an enemy combatant, Hamdan has the right to challenge the basis for detention in a habeas corpus proceeding in the U.S. District Court for the District of Columbia. It would be interesting to see how a judge might view his being detained after he has finished his full sentence.

The status of Hamdan and other enemy combatants will present a challenge for the next president, who will be charged with determining which anti-terrorism policies of the Bush administration should be kept in place and which should be junked. The Pentagon has said that a small group of detainees at Guantanamo will be kept indefinitely, even if the Defense Department does not have enough evidence to formally charge them before military commissions.

Here is the Associated Press bulletin:

GUANTANAMO BAY NAVAL BASE, Cuba (AP) — A military jury gave Osama bin Laden’s driver a stunningly lenient sentence on Thursday, making him eligible for release in just five months despite the prosecutors’ request for a sentence tough enough to frighten terrorists around the globe.

Salim Hamdan’s sentence of 5 1/2 years, including five years and a month already served at Guantanamo Bay, fell far short of the 30 years to life that prosecutors wanted. It now goes for mandatory review to a Pentagon official who can shorten the sentence but not extend it.

The road ahead for military commissions

(AP/Janet Hamlin)

Here is my story from today’s Chicago Tribune:

WASHINGTON—The government has been trying to prosecute and convict Salim Ahmed Hamdan for war crimes for five years. On Wednesday, a Guantanamo Bay military jury found Hamdan guilty of supporting terrorism, and he now faces life in prison.

So, mission accomplished?

Hardly.

The conviction of Osama bin Laden’s former driver may have provided the Pentagon with a brief moment of certitude, something concrete it can point to as a success. But in reality, it’s just another small step forward in the Byzantine uncertainty that is the military commission process. The only thing certain is there are miles to go until the issue of the validity of Hamdan’s conviction is put to rest.

“We haven’t really proved anything about whether this system is going to work,” said Shayana Kadidal, a lawyer for the Center for Constitutional Rights, which represents several detainees at Guantanamo Bay in Cuba.

Hamdan: Pentagon statement

The Department of Defense has released this statement on Hamdan’s conviction:

            A military panel announced today that Salim Ahmed Hamdan of Yemen was found guilty of providing material support to terrorism by a military commission under the Military Commissions Act of 2006.   Hamdan was found guilty on five of eight specifications of material support to terrorism, numbers 2, 5, 6, 7 and 8. He was found not-guilty by the panel members (jury) on the charge of conspiracy.

             Now that Hamdan has been found guilty of these offenses, the commission will determine an appropriate sentence. Based on the crime for which he has been convicted he faces the maximum sentence of life in prison.

 

            Hamdan’s conviction at trial is one step in the military commission process. After the trial is complete his case will receive an automatic review by the Convening Authority, who will evaluate the legal sufficiency of the findings and appropriateness of the sentence. Hamdan will still be represented by counsel and have the opportunity to submit matters for consideration on his behalf. Then his case will receive an automatic review by the Court of Military Commission Review. Thereafter, he could appeal to the Court of Appeals for the District of Columbia and the Supreme Court.

 

            Trials by military commission demonstrate that the United States is committed to holding dangerous terror suspects accountable for their actions. Military commissions provide a mechanism to serve justice to those accused of law of war violations while keeping the United States, friends and allies safe from those determined on carrying out attacks on civilian populations and coalition forces.

 

            Military commissions are constituted courts, affording all the necessary judicial guarantees which are recognized as indispensable by civilized peoples for purposes of Common Article 3 of the Geneva Convention.

 

            A link to Hamdan’s list of charges can be viewed on the Military Commission Web site here.

Hamdan: Amnesty International statement

[Washington, DC]—Larry Cox, executive director of Amnesty International USA, issued the following statement in response to today’s verdict in the first military commissions trial at Guantanamo Bay in the case of Salim Ahmed Hamdan:

“Regardless of today’s verdict, Hamdan’s trial revealed what is common knowledge – the military commissions are fatally flawed and do not adhere to major aspects of the rule of law.

“Hamdan suffered nearly seven years of unlawful detention, only to face a process that falls far short.  So far the trial continues the Bush administration’s efforts to escape the rule of law and the requirements of justice.” 

Hamdan: John McCain statement

ARLINGTON, VA — U.S. Senator John McCain issued the following statement on today’s verdict in the case of Salim Ahmed Hamdan:

 “I welcome today’s guilty verdict in the first trial held under the Military Commissions Act (MCA). This process of bringing terrorists to justice has been too long delayed, but I’m encouraged that it is finally moving forward. I supported that legislation, which was a good-faith effort by Congress to meet the Supreme Court’s direction to establish a process to bring terrorist detainees to trial. Salim Ahmed Hamdan, a trusted confidante of Osama Bin Laden, was provided a full hearing of the charges against him and was represented by counsel who vigorously defended him. The jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan.

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.”

Well, it’s your move, Barack Obama. In the past Obama has criticized the commission system. We will see if he issues a statement today.

 

Hamdan: CCR statement

Here is a statement from the Center for Constitutional Rights on the Hamdan conviction:

August 5, 2008, New York – In response to the hand-picked military jury’s decision in the Military Commission against Salim Ahmed Hamdan, Shayana Kadidal, Senior Managing Attorney of the Center for Constitutional Rights (CCR) Guantánamo Global Justice Initiative, issued the following statement:

 “Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all civilized nations:  the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.

 The decision to keep these cases out of the ordinary criminal courts will produce years of appeals over novel legal issues raised by the untested military commissions system. Even after those appeals are finished, the process will never be seen as legitimate by the world.  This case was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

 CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. CCR represented the detainees with co-counsel in the most recent argument before the Supreme Court.  For more information or to read the amicus brief filed by CCR in Hamdan v. Rumsfeld, click here.

 

Hamdan: What’s next?

Salim Hamdan can appeal his conviction to the newly established Court of Military Commission Review, and from there up to the federal appeals court in Washington and then finally the Supreme Court. There should be no shortage of appealable issues, especially with regard to evidence and access to witnesses.

Also, Tuesday, the military judge in the case, Keith Allred, confessed to possibly making an error in instructing the jury on international war criminal law, raising the specter of a mistrial. Instead, both sides allowed the process to go forward.

When the trial began, Allred ruled that prosecutors could not used evidence obtained by interrogators under “coercive” conditions while Hamdan was imprisoned in Afghanistan. That may prove to be the most significant outcome of the case. However, Allred admitted evidence obtained by interrogations of Hamdan once he was imprisoned in Guantanamo. Expect this aspect to be a focus of the litigation to come. 

And of course, there will be a challenge to the very nature of the commissions themselves. It was Hamdan’s challenge to the first set of commission procedures that resulted in the Supreme Court declaring them unconstitutional in 2006 in the case that bears Hamdan’s name. That ruling forced the Defense Department to go back to the drawing board, but defense lawyers and human rights groups maintain that the process remains unfair and illegal. 

Detailed information on commission procedures can be found here. It is the transcript of a press conference held at the Pentagon in 2007 that outlines the re-drawn procedures. 

Also, here is a brief from human-rights watchdog Amnesty International released yesterday that addresses the preservation of interrogation evidence.

Hamdan convicted of war crimes

A flash from the Miami Herald‘s Carol Rosenberg:

Bin Laden’s driver found guilty of war crimes

BY CAROL ROSENBERG

GUANTANAMO BAY NAVY BASE, Cuba — A U.S. military jury Wednesday convicted Osama bin Laden’s driver of war crimes — making him the first war-on-terror captive convicted by contested tribunal at the U.S. Navy base at Guantánamo Bay, Cuba.The jury announced the verdict against Salim Hamdan at 10:16 a.m. 

It cleared him of the more serious crime of conspiracy but convicted him of multiple counts of providing material support for terror.

Conviction can carry a maximum life imprisonment.

The six U.S. officers who convicted him gets to next deliberate on his sentence.

The jury of six officers got the case Monday after extensive closing arguments. They deliberated a total of 6 ½ hours Monday and Tuesday at this U.S. Navy base in Cuba.

Hamdan, 37, was captured in November 2001 in Afghanistan by allied U.S. troops. He had two surface-to-air missiles in his car when captured and has been held at Guantánamo since May 2002.

Attorneys presented the war crimes case and Hamdan’s defense over the past two weeks. Conviction could carry a maximum sentence of life in prison.

Hamdan not going anywhere soon

Even if the military jury deliberating his case finds Salim Hamdan innocent of charges of supporting terrorism and conspiracy, he won’t be leaving Guantanamo anytime soon.

As reported by my Tribune colleague Aamer Madhani on The Swamp, the Pentagon said today that Hamdan would be kept as an enemy combatant if he is found not guilty.

“Even if he were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected…to continued detention,” Pentagon spokesman Geoff Morrell said at an afternoon news briefing today.

Morrell said that Hamdan would have an opportunity to go before an administrative review board to appeal his enemy combatant status, but in the near term Hamadan is considered a danger to U.S. national security and will remain in U.S. detention regardless of the verdict.

The extent to which Hamdan poses a danger to the U.S. is unknown. Defense lawyers have portrayed him a simple driver and gofer for Osama bin Laden. But there is no doubt that he was affiliated with al Qaeda. Not that one of his former bosses, Khalid Sheikh Mohammed, thought much of him.