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Detainee's Time Served Is Challenged
Prosecutors Say Judge Gave Hamdan Improper Credit

By Peter Finn
Washington Post Staff Writer
Saturday, October 18, 2008

The Bush administration is seeking to recall a military jury that gave a light sentence to Osama bin Laden's driver in one of the first trials at Guantanamo Bay, arguing that the judge improperly credited the defendant for time he had already spent in the detention facility.

Salim Ahmed Hamdan, a 40-year-old Yemeni captured in Afghanistan in November 2001, was sentenced in August to 66 months for providing material support to terrorism. The judge, Navy Capt. Keith J. Allred, credited the defendant with 61 months and eight days for time he had been detained at the U.S. military prison in Cuba, leaving Hamdan with an effective sentence of 142 days. Prosecutors had sought a 30-year term.

The government argues that Hamdan was not entitled to any credit for his pretrial detention because he was not held at Guantanamo Bay "in connection with the charges for which he was tried, but was independently detained under the law of armed conflict as an enemy combatant," according to motions filed with the military court and released this week.

According to military prosecutors, that distinction also allows the government to hold any detainee even after he has been tried, convicted, sentenced and has served his time. The government said in court papers that prosecution for violations of the laws of war is an "incidental fact" to a detainee's "wartime detention as an enemy combatant."

The August decision by the jury of six officers also left the Bush administration with a looming dilemma: either release a man it insists is still dangerous on Dec. 31, or risk a further backlash against the controversial war trials system in Guantanamo Bay by continuing to hold him on the grounds that he remains an enemy combatant.

The government said the judge erred in awarding credit, a decision Allred communicated to the jury when its members queried him. The defense insists the issue of credit was agreed upon at trial, when prosecutors expected a long sentence. But the government said it entered a standing objection before the judge briefed the jury.

Defense lawyers, noting that the government at first hailed the Hamdan verdict as a measure of the fairness of proceedings at Guantanamo Bay, ridiculed the prosecution's logic as absurd.

To make their point, they placed a quote from their client, speaking at a hearing in April, at the top of their motion responding to the government: "If you ask me what the color of this paper is, I will tell you the color is white," Hamdan said. "You say no, it's black. I say white, you say black. I say fine, it's black. Then you say no, it's white. This is the American government."

Hamdan's lawyers said the government's motion was a ruse "to avoid releasing Mr. Hamdan in December."

"If the government doesn't honor the verdict of the jury, it clearly demonstrates these really are show trials," said Navy Lt. Cmdr. Brian Mizer, Hamdan's military defense attorney.

Human rights groups said the government was avoiding the logic of its own position by trying to find a way to hold Hamdan other than as an enemy combatant.

"What's the point of having a trial if the sentence handed down is irrelevant to how long the U.S. can detain him?" asked Stacy Sullivan, a spokesman for Human Rights Watch. "Clearly, the government recognizes that it can't justify ignoring a sentence handed down by the military commissions -- that's why it has challenged the sentencing. If the government loses and continues to detain Hamdan after December 31, it will be acknowledging the fundamental flaws in the legal process it created at Guantanamo."

Prosecutors said they are not seeking a longer sentence for Hamdan and are instead defending the principle that there is no provision under military law to award credit for pretrial time served. And, in any case, enemy combatants are not entitled to it, prosecutors said. They told the court that any reconvened jury could issue another light sentence.

"If the members wish to sentence the accused to 142 days confinement, then they may choose to do so," prosecutors wrote in their brief.

But Department of Defense officials said no decision has been made on whether Hamdan would be released on Dec. 31 should a reconvened jury adopt such a course.

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