The Hamdan Sentence

After Olbermann waxed poetic for the misunderstood bin-Laden driver we learn that not only is the terrorist convicted of only a lesser crime, but that he is sentenced to only 5 1/2 years. With 5 years credit.

This is the result of running a war like it isn’t a war, but a law enforcement problem.

Andy McCarthy:

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.

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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.

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Hamdan’s commission has produced a trial that seems to have bent over backwards to be fair to the defendant — so much so that dubious evidentiary rulings and jury instructions may have caused an unmerited acquittal on one of the two charges. More significantly, it has resulted in a sentence that is stunningly unjust, by any measure, given the magnitude of the crime of conviction.

It’s too late to do anything about the horrible SCOTUS decision that brought this about but ensuring that Obama doesn’t get to nominate the next justice is now that much more important. Imagine the damage to this country a liberal court could do?

Curt

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