THE BLOG
09/15/2008 05:12 am ET | Updated May 25, 2011

Release Hamdan

Last week, Salem Hamdan was tried and sentenced by a military commission at Guantanamo Bay in the first proceeding of its kind since 9/11. A Pentagon-selected panel of six senior military officers carefully deliberated about the verdict and the sentence over several days, ultimately agreeing on a sentence of 66 months - after having been informed by the military judge that Mr. Hamdan would receive credit for 61 of the months he has already been imprisoned. This means that Mr. Hamdan will have completed his sentence around the end of this year -- some seven years after first being brought to Guantanamo.

The Bush Administration, however, has indicated that despite the considered judgment of these military officers, it may continue to hold Mr. Hamdan indefinitely at Guantanamo as long as it wants after his sentence has run. "Even if he were acquitted of the charges that are before him, he would still be considered an enemy combatant," Pentagon spokesman Geoff Morrell said at a news briefing before the verdict, and so "would likely still be detained for some period of time thereafter." Mr. Hamdan's sentence, in the Administration's view, will be not that selected by the military, but whatever the president wants.

This position is unjust and unwise. When Mr. Hamdan's sentence has been served, he should be released from Guantanamo and returned to his home country of Yemen.

Before Mr. Hamdan's trial began, he asked a federal court to intervene to evaluate whether the military commission was constitutional in light of the Supreme Court's decision earlier this summer that the Constitution applied at Guantanamo Bay and the detainees were entitled to habeas corpus hearings in court to evaluate the legality of their detentions as enemy combatants. Mr. Hamdan argued that he had the same right to a habeas corpus proceeding as all the other detainees. The Administration responded that federal habeas review of Mr. Hamdan's detention was unnecessary, for his "day in court" which would make "an adjudication of the facts" of his case had "arrived" in the form of the military commission. The Administration's position, stated in its written pleadings and reiterated at oral argument, was that the military commission itself would serve as "an adequate substitute for habeas." The federal Judge took the Administration at its word, and decided to let the military commission play out rather than intervene to hold a habeas hearing.

Now, the military officers have made "an adjudication of the facts." Over a trial of several weeks, and deliberation of several days, the military officers evaluated the precise nature of Mr. Hamdan's conduct in Afghanistan, the motivations for his actions, his character as a man, his intentions, and the danger he presented to the United States. The military panel considered large quantities of evidence prepared by the Administration including interrogations of Mr. Hamdan and the testimony of several security experts.

These military officers' considered decision on the appropriate length of Mr. Hamdan's sentence should carry the day. Since, as the Administration argued, the military commission would serve in place of a federal habeas hearing, any continued detention at Guantanamo Bay beyond that approved by the military commission would be unlawful. After all, if the military commission's decision is irrelevant to the length of Mr. Hamdan's detention, then the Government's prior representations in court were false.

There remain serious concerns about the military commissions. The procedural and evidentiary rules are inconsistent with any other American trials, and contrary to the requirements of the Constitution and the Geneva Conventions. And the sole charge of "material support" on which Mr. Hamdan was convicted has never before been considered a war crime, and certainly was not a war crime at the time of Mr. Hamdan's asserted conduct in 2001 and before.

But the Bush Administration has long heralded these military commissions as crucial to providing legitimacy for detentions, bringing justice to both the detainees and the victims of 9/11, and achieving its goal of closing down Guantanamo.

Continuing Mr. Hamdan's Guantanamo incarceration beyond his sentence would reveal the military commissions to be a sham. If the commission's sentence is irrelevant to the length of detention, then the commissions truly are the "heads we win, tails you lose" show trials that so many in the United States and around the world fear.

By respecting the determination of the military officers, however, and releasing Mr. Hamdan at the end of his sentence, the Administration could go a long way to showing that it is serious about bringing legitimacy and justice to Guantanamo. As one of the Government prosecutors, Major Omar Ashmawy, put it, "The sentence isn't always what the government asks for," but "That's the way a fair, open system works."