In an astounding finale to the first military-commission trial, Salim Hamdan, Osama bin Laden’s personal aide, has been sentenced by a military commission to five-and-a-half years in prison —
five-and-a-half years — upon conviction for the war crime of providing material support to al-Qaeda.
It gets worse. The military judge, Naval Captain Keith Allred, has decided that Hamdan should be credited with the five years he has already spent in custody.
In effect, the jury's shameful 66-month sentence is thus reduced to a shocking six months — for key assistance to a terror network that has killed thousands of Americans and continues plotting to kill more.
I erred in a
post Thursday evening on
NRO’s main blog, “The Corner,” by suggesting that Judge Allred was singularly responsible for the disgraceful sentence. The error owes to my misunderstanding of commission sentencing procedure. To wit, I thought that upon finding Hamdan guilty of providing material support to our enemies, the jury (a panel of six military officers) would hear evidence at a hearing and then make a sentencing recommendation. The judge, I incorrectly believed, would then be free to follow that recommendation or not — imposing sentence in his discretion for any term of years between no time and life imprisonment.
In fact, the sentence in a commission case is imposed by the jury. As the commission rules stipulate (see
here), “If there is a finding of guilt, the
military commission members may impose any appropriate sentence, including death if the case is referred as a capital case[.]” (Emphasis added.) The military commission members are the jurors.
The military judge’s role at sentencing is not unimportant, but it is subsidiary. The judge may force corrections if the jury sentences outside the scope of legal authority (e.g. if the panel were to impose 30 years for a crime that carries only a 10-year sentence). More importantly for present purposes, the judge decides such matters as whether any jail time the defendant has already served gets counted against the sentence pronounced by the jury.
In Hamdan’s case, we thus have a double problem. First, the jury of military officers somehow decided that material support to our enemies, by a guy who actually protected bin Laden and transported weapons for al-Qaeda, was worth only five-and-a-half years in jail. Second, the judge then made matters incalculably worse by effectively giving Hamdan what everyone (including the judge) must know will be taken as a get-out-of-jail card: i.e., full credit for the five years Hamdan has already been in custody as an enemy combatant. That turns the 66 months into six months.
Understand: there is no requirement to try captured enemy combatants for war crimes. As the laws of war have long provided, and as the Supreme Court has recently reaffirmed, wartime enemy combatants may be held without trial for the duration of hostilities. War crimes charges are an additional measure against combatants who commit egregious law-of-war violations.
Yet, that distinction has been lost in the media’s coverage. Absurdly, Hamdan is now in a better position as a convicted war-criminal than those who have merely been detained as enemy combatants without war crimes charges. The American military has managed to value terrorist war crimes as a less serious impropriety than terrorist war participation. Instead of highlighting Hamdan’s conviction, the government will now spend its time explaining why he is still being held after his sentence is over.
Look, I’m a longtime veteran of the civilian-justice system. I have seen what it does in terrorism cases: the daily risks and realities of disclosing and generating sensitive national-defense information — in the middle of a hot war, provided for the benefit of the jihadists trying to kill us. Terrorists go to school on what we disclose to them. That markedly increases the risk of additional terrorist attacks and it similarly creates more risk for our soldiers in harm’s way. That ought to be unacceptable. The United States government’s first obligation is the security of the governed, not due process for the enemy.
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