Judge Rejects Government Call to Reconsider Hamdan Sentence

By Peter Finn
Washington Post Staff Writer
Friday, October 31, 2008

A military judge has refused to reconsider the sentence of Osama bin Laden's former driver, forcing the Bush administration to either release a man it insists is a dangerous terrorist in two months or continue to hold him at Guantanamo Bay as an enemy combatant despite his having served his time after a trial and conviction.

Salim Ahmed Hamdan, 40, a Yemeni captured in Afghanistan in late 2001, was sentenced in August to 66 months for providing material support for terrorism following his conviction by a jury of six officers. But the jury knew that the judge, Navy Capt. Keith J. Allred, planned to credit Hamdan 61 months and eight days for the time he had already been held at the military prison in Cuba.

Prosecutors had sought a 30-year sentence, but the jury, unconvinced that Hamdan was anything more than a low-level al-Qaeda figure, came back with a sentence that ostensibly allows Hamdan to be released Dec. 31.

Military prosecutors argued that Allred erred in deciding that Hamdan was entitled to credit for time held. In a ruling Wednesday, which was released yesterday, Allred refused a government motion that he reassemble the jurors and tell them Hamdan is entitled to no credit.

The government has argued that Hamdan's status as an enemy combatant is separate and independent of any trial for his violation of the laws of war. U.S. officials said that would allow the United States to continue to hold Hamdan beyond Dec. 31. But such a step would likely lead to criticisms that the military commission trials at Guantanamo are meaningless.

Military prosecutors said that in seeking a new sentence, they were defending a legal principle that there is no provision for pretrial credit; they also said they would not seek any more than 66 months at a new sentencing. But defense attorneys said the government wanted to avoid the hard choice of releasing Hamdan or holding him as an enemy combatant.

Pentagon officials said no decision has been made on Hamdan's fate, which is now likely to land on the desk of Defense Secretary Robert M. Gates.

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