Detainee May Not Go Free After Sentence

U.S. Still Might Hold Hamdan as 'Combatant'

Washington Post Staff Writers
Sunday, August 10, 2008; Page A01

The short sentence a military jury handed down this week to the first man convicted of terrorism-related charges at a Guantanamo Bay trial has taken the Defense Department by surprise, spurring high-level discussions about what to do with Salim Ahmed Hamdan when his sentence expires in January.

Hamdan's sentence of 5 1/2 years, which amounts to five more months in U.S. custody, was far lighter than some Pentagon officials had expected. Prosecutors had asked for a sentence of at least 30 years, and now officials are preparing for the possibility of having to set him free or hold him indefinitely as an "enemy combatant."

Bryan Whitman, a Pentagon spokesman, said it has always been the Defense Department's position that detainees could be held as enemy combatants even after acquittal at military commissions or after serving a prison sentence. "That's always been on our minds in terms of a scenario we could face," he said. "He will serve his time for the conviction and then he will still be an enemy combatant, and as an enemy combatant the process for potential transfer or release will apply."

Hamdan, who was convicted of lending material support to terrorism as Osama bin Laden's driver, was a test case for the military commissions system, and Defense Department officials said the short sentence proves that the system is even-handed.

But military law experts said yesterday that it is unlikely his case's outcome will predict future verdicts or sentences because of its set of facts -- including Hamdan's role as a driver and not a terrorist fighter or operative. Some said Hamdan was representative of many detainees at Guantanamo Bay who had low-level roles in terrorism, in contrast to the alleged masterminds and important operatives in al-Qaeda and other groups.

Eugene Fidell, president of the National Institute of Military Justice, said he was not surprised by the lenient sentence because the case against Hamdan was not particularly strong. "It demonstrates, at the very least, that you cannot count on a military jury to throw the book at people," said Fidell, who teaches military law at Yale Law School. "It doesn't demonstrate the wisdom of the process, and it doesn't illustrate the fairness of the process."

Pentagon officials are pressing forward with other cases they hope will be more indicative of the hard-core terrorism they seek to prosecute, including the cases against Khalid Sheik Mohammed and four other alleged co-conspirators in the Sept. 11, 2001, attacks. Those cases, which could carry the death penalty, are expected to delve deep into the planning of terrorism that killed nearly 3,000 people in the United States.

The Pentagon also is pursuing cases in coming months against two detainees who allegedly killed and injured U.S. troops on the battlefield in Afghanistan. Omar Khadr, who was arrested when he was 15 years old after he allegedly killed a U.S. soldier with a grenade, is expected to face trial at Guantanamo Bay in October.

Gary Myers, who has practiced military law for 40 years, said military panels have a deep understanding of command structure and are loath to punish low-level players when someone higher up is responsible.

"They understand chain of command and the relative roles of people, and this guy was a nobody," Myers said. "It is really a question of how a military panel would view a four-star general's driver. He was a driver. This is a decision consistent with their military training and understanding."

Defense Department officials said there are concerns about the public perception of holding Hamdan after his prison term runs out, because it could label the military commissions a "show process" with no meaning to its sentences. They also worry about possible precedents that could be set in U.S. courts if Hamdan's attorneys immediately file a habeas corpus petition seeking his release in five months. Hamdan previously won a Supreme Court case that invalidated the Bush administration's earlier military commissions procedures.

Nancy Hollander, attorney for Saudi Abd al-Rahim al-Nashiri, who is accused of planning the 2000 attack on the USS Cole, said it would be "totally unfair" for the government to hold Hamdan indefinitely.

"We had a court. We had a jury. It was a military jury. They heard the evidence. They gave him five months," Hollander said. "That ought to be his sentence. Either we believe in American justice or we don't."

Complicating the case against Hamdan is the fact that he is from Yemen, a country where the United States has been reluctant to send Guantanamo detainees because of human rights and security concerns. Though Yemen has been lobbying to get its citizens into a repatriation program in Sanaa, the U.S. government has not agreed to do so. The only other person convicted under the military commissions system at Guantanamo -- Australian David Hicks -- was quickly sent to Australia to serve out the final months of his prison term before earning his release.

Staff writer Jerry Markon contributed to this report.

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