Should government officials honor the verdict and relatively light sentence meted out by the six-member war crimes tribunal, or will the American military continue to hold Salim Hamdan of Yemen in open-ended military detention even after he has served his term?
Mr. Hamdan was sentenced Aug. 7 at the conclusion of the first trial of a terror suspect by special military commission at Guantánamo Bay. The sentence, far below the 30 years to life sought by the US government, means Hamdan could be eligible for release in five months after receiving credit for time already served.
The sentence is a setback for the Bush administration, which had hoped harsh punishment in the Hamdan case would send a stern message to would-be Al Qaeda sympathizers around the world and set the stage for the next round of war crimes prosecutions at Guantánamo. But to brush aside the sentence imposed by the first tribunal after a 10-day trial would suggest a lack of respect by the administration for its own special commission process and the rule of law, critics say.
The sentence was handed down by a panel of six military officers, handpicked by the Pentagon, who on Aug. 6 rejected US government arguments that Hamdan was a terrorist conspirator. Instead, the panel convicted Hamdan of providing material support to Al Qaeda by continuing to serve as a driver and bodyguard to Mr. bin Laden – even after he learned the group was involved in terrorism.
The panel announced the sentence after hearing testimony and argument from prosecutors and defense lawyers. Hamdan read a statement during the hearing apologizing to victims of the 9/11 attacks.
The panel – the first US war crimes tribunal since World War II – was empowered to hand down a sentence anywhere from no punishment to life in prison. Military Judge Keith Allred, a Navy captain, told panel members they could consider Hamdan's seven years in US detention and that he is the sole supporter of his wife and two children. In addition, the panel heard testimony during the trial that Hamdan had cooperated with US officials seeking information about Al Qaeda.
The sentence raises questions about whether the US government will follow suggestions by officials that even if Hamdan were acquitted of all charges he could still be held at Guantánamo as an unlawful enemy combatant until the end of the war on terror.
"It is not clear that the length of sentence is all that meaningful to Mr. Hamdan. It is not as though whenever his sentence has been served he is going to be leaving there," says Madeline Morris, director of Duke Law School's Guantánamo Defense Clinic.
The government would be ill-advised to hold Hamdan after he has served his sentence, say some in legal circles who have followed the war-on-terror cases. "To the extent you go to the trouble of looking at specific offenses committed by a particular enemy combatant, you adjudicate, you prosecute, and you obtain the result, then you have to live with the consequences," says David Rifkin, a Washington lawyer and a supporter of the Bush administration's military commission effort. "Whatever the sentence is, once he has finished serving it he should be released."
The sentence makes it harder for critics to suggest that the commission process is unfair, says Mr. Rifkin. He admits he was "surprised" by the 5-1/2-year sentence, "but I wasn't there to listen to the evidence."
Linda Malone, director of the Human Rights and National Security Law Program at William and Mary Law School, says the administration's prior position on holding enemy combatants raises hard questions. "The Bush administration has said that [Hamdan] will be held until the war on terror is over, regardless of what sentence he gets," Professor Malone says. "It is almost Kafkaesque that regardless of what the sentence might be and whatever credit he is given [for his prior detention], they are saying they are going to hold him until the war ends – and everyone knows that is virtually limitless."