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."

Comments

[mlaiuppa]

The administration can say whatever it wants now.

On Jan 20 or soon thereafter, Mr. Hamden is going to be released.

[bronceye]

All the king's horses and all the king's men will never put humpty dumpty together, again. America has been sabotaged from within.

[jqcitizen]

bronceye-

Your statement "America has been sabotaged from within.", while not directly related to the Hamden issue, reminds me of Nikita Krushchevs' words "We will bury you"
The Reagan/Bush administration contributed to the demise of the USSR, in part, by driving it into bankruptcy and supporting Osama Bin Ladens troops in Afghanistan.
Today, Afghanistan and Bin Laden are not a problem for Russia or Putin, but certainly huge for the Bush/Cheany administration and getting 'Buried' in debt is real.
America has, indeed, been sabotaged from within.

[lthuedk 1]

It's a tad more than interesting that Patrick Fitzgerald was able to get convictions for real crimes after the bombing of the Twin Towers. We all benefited from the P_O_L_I_C_E action that terrorism requires. Instead, we got a Bush police state, where we're all suspects.

And we know quite well, how the dictatorship handles suspects.

http://www.light-to-dark.com/i_feel_your_pain.html

Bushists never intended to apprehend or kill Osama bin Laden. He was and remains the golden goose of the military industrial complex and the neo cons.

http://www.light-to-dark.com/senate_republicans_visit_iraq.html

[Whinger]

Real Henry The Eighth stuff, the god dammed piece of paper don't matter, King George is the law!

[lifebylisa]

The difference between Reagan years and now, is this administration abuses the Constitution, making it merely a piece of toilet paper. They've worked to give themselves much more power than was done in Reagan's day. Hopefully GHW Bush talks some sense into Jr. that it's time to stop pretending to be president come January 20, 2009. I keep seeing about Gitmo's coming soon to the US and it's a bit unnerving. I think if all goes smoothly, January 20 will become a National Holiday.

[Ozarks]

Reminds me of what the French did to Dreyfus

[Ramirez]

Good post. I think this is an excellent issue for Obama.

Our future president should pledge that upon his election he will immediately pardon Hamdan and close Gitmo. This will send a strong message to the world that our nation is on a new beginning.

[Geoffreys]

I know it feels like January 2001 was forever ago, but January 2009 is only a few months away and then the Bush Regime will be over.

I know that for some of you, the majority of your political awareness involves the current Administration - but trust me when I say it will end. I became politically aware in at the beginning of the Reagan years and it, too, seemed to go on like a never ending nightmare and it, too, ended.

Once it's over and done with, the new President has the chance to correct many of the horrible things done in our name over the past 8 years.... Hopefully, releasing Hamdan and the others in Gitmo will be among them.

[pundit27]

Yes, but the Reagan Revolution, marked by deregulation, defense spending and demonizing taxes, is only about to end -- 28 years with the only check being Clinton's centrist turn -- and the conservatives' supply side trickle down hokum has ended in an explosion of world events we let happen that have left America hardly the shining light on the hill. . . we'll need 16 to 20 years to completely emerge from the mess we've made of ourselves . . . .

[rmreddicks]

One partial redress does not make anything about these extra-cons­titutional­, extra-legal, government maneuvers legitimate.

[LazarusLong]

"...the Bush Administration ... achieving its goal of closing down Guantanamo­."

"...bringi­ng legitimacy and justice to Guantanamo­."

Never part of the plan.

[shengirl]

This position is not only unjust and unwise, it is un-American and un-Constitutional. And an outrage. C'mon, January 20, 2009! We need to get back to our founding principles and ideals.

[Agent420]

They have broken the Constitution and cannot remember it. Boooosh made everyone throw away their copies. He said that anyone having a copy will be sent to Gitmo as a terrorist. No matter that you are not, they will get around to you in, say, half a dozen years. Then after you prove youself to be innocent, they will still not let you go because someone inside may have taught you to hate America and how to make things go bang.

[KazooDan]

I think everybody knew this would happen. Now there will be those who believe this is a sham and those who believe Bush is right to continue the detention.

I'm going with sham.