U.S. wants Hamdan held longer
on Oct 19, 2008 at 4:01 pm
Anticipating an imminent new test of the constitutional right the Supreme Court has recognized for Guantanamo Bay detainees, the Justice Department and Pentagon are seeking to keep a Yemeni national, Salim Ahmed Hamdan, in captivity at Guantanamo Bay long after his war crimes sentence is scheduled to end. This is the same prisoner whose case has been to the Supreme Court before, and very well may return there.
Within two and a half months, Hamdan is due to complete the sentence he received in August, following his conviction by a military commission jury on charges of providing support to terrorists. When he does finish the sentence, his attorneys are expected to renew their habeas case in civilian court in Washington, D.C., now on hold. They will be challenging his continued detention beyond Dec. 31, pleading the habeas right the Supreme Court allowed last June in Boumediene v. Bush. (Hamdan was sentenced to 66 months in military prison, but that was reduced to four months and 22 days because the commission jury gave him credit for 61 months and eight days for part of the time he has been detained by the U.S. military.)
In a new development that has been unfolding since late September, the government is arguing that the commission had no authority to give him credit for prior captivity, so the jury should be called back together at Guantanamo, told of that error, and then asked to impose a new sentence. The government’s motion said it would seek no higher sentence than the 66 months imposed earlier. That, of course, would mean another five years beyond the confinement Hamdan has served since early August.  The detainees’ lawyers are challenging the maneuver, saying military law allows credit for time in custody, and adding that there is no power to challenge Hamdan’s sentence now that his trial is over.
The government’s motion, dated Sept. 24, can be found here; the reply by Hamdan’s attorneys is here, and the government reply is here. (Thanks to Jess Bravin of The Wall Street Journal for obtaining release of the documents by the Pentagon. Jess’ story in The Journal is here.)
While the dispute at this stage focuses primarily on military law, the underlying theory on which the government’s new move is based has implications for all detainees still at Guantanamo, including some 80 others who, like Hamdan, have been charged with war crimes.
The theory on which the government is relying is that Hamdan has been held throughout his captivity — practically, all of the seven years of his confinement — as an “enemy combatant.” That status, its motion argued, was independent of any prosecution by a military commission. Thus, it contended, “he was continuously and lawfully detained as an enemy combatant….His status as an enemy combatant remained, throughout, a sufficient and independent basis for his detention.”
That separate status, said to be based on “the law of armed conflict,” will continue regardless of what happens to his sentence following the war crimes conviction, it has asserted. “Enemy combatants are detained,” it said, “to remove them from the battlefield.” And their detention, can last “for the duration of the relevant conflict” — that is, until the current “war on terrorism” is over, whenever, and if ever, that may be.
So, according to this theory, if Hamdan serves only to Dec. 31, or if he is required to serve the full 66-month term the government is now seeking, he would not be likely to shed the enemy status he has had all along.
Whatever happens in a military commission case, the motion contended, “the United States would be fully justified to continue to detain someone adjudged to be an enmy combatant in order to prevent his return to the battlefield.”
Hamdan’s lawyers, in response, focused their resistance to a new sentence primarily on military law in general and on the specifics of the 2006 law, the Military Commissions Act, that set up the war crimes trial process through which Hamdan has just gone. Government prosecutors, the Hamdan brief contended, waived any objection on the time-in-custody credit issue by not challenging it at the time the credit was awarded.
His counsel also has put some emphasis on a claim that concepts of military due process actually require that pre-trial detention be considered as a credit against a sentence. And, they have said, a military commission trial could violate the Geneva Convention if there were no chance to obtain punishment credit for time previously served.
The detainees’ brief does not seek to answer the government’s contention that Hamdan’s detention was unrelated to the military commission process because it was tied to his “enemy combatant” status.  But the brief does contend that the government is only seeking “to increase the severity of the sentence” because it “would like to avoid releasing Mr. Hamdan in December.”
In the government’s reply brief, it contended that it was not seeking a longer sentence, but merely the correction of a legal error at the military commission trial. In fact, it contended, it was “indifferent as to the sentence adjudged,” since its focus was on a “sentencing principle” that could affect other Guantanamo prosecutions.
The motion, it said, “in no way relates to whether the accused could or should be detained as an enemy combatant beyond the point at which he will be found to have served his sentence from the military commission.” That appeared to be something of a contradiction of its extended argument in the opening motion about its right to continue to hold Hamdan as a combatant without regard to what happens in the military commission setting. The argument about why he was detained was a major premise of its point that he was not entitled to credit for pre-trial detention.
It is unclear, at this point, whether the civilian courts will have anything directly to say on Hamdan’s continued confiinement beyond whatever sentence is the final one, at least until his counsel renew the habeas challenge in U.S. District Court.
But there are likely to be some developments in civilian court, in the meantime, that could bear on how long Hamdan might be held irrespective of his sentence for war crimes.  The government, in trying to retain control of all Guantanamo detainees, and thus to resist any court order that any of them be transferred out of Guantanamo, is relying on a separate theory: that is, that it has the authority to keep a detainee at Guantanamo as long as is necessary to “wind up” a detention situation in “an orderly way” — an open-ended concept of potentially prolonged captivity.
That, for example, is one of the arguments it is making against a federal judge’s order — now on appeal to the D.C. Circuit Court — requiring the release into mainland U.S. of 17 Chinese Muslim prisoners at Guantanamo. It is also at issue in pending appeals at the Circuit Court on whether judges have any authority at all to regulate the transfer of detainees out of Guantanamo.
