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August 7, 2008

Hamdan, Osama Bin Laden’s Driver, Sentenced to 5 and a Half Years

Salim Hamdan, the Yemeni national who was Osama Bin Laden’s driver, and the first person to be tried by a military commission in 60 years, was sentenced today to 66 months in a detention facility at Guantanamo Bay for providing material support to a terror organization.  Prosecutors were seeking a sentence of at least 30 years for Hamdan, who had faced life in prison. The jury returned its verdict, after just 70 minutes of deliberations. 

The jury sent a strong message to the U.S. government. Although Hamdan had been found guilty of providing material support to a terror organization for his role in the September 11th attacks on the United States, the military jury cleared him of the conspiracy charges.  Further, the military jury was aware before determining the sentence of the Court's determination to give him credit for the 61 months and eight days served.  Taking that time into effect, only 5 months remain on Hamdan's sentence.

The story has been covered by SCOTUSblog here, as well as by many media outlets, including an article posted here.

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August 7, 2008 at 08:19 PM | Permalink


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A few observations:

The court martial panel decide he will be entitled to release shortly before the next president is sworn in.

Had this been tried in civilian court he likely would have been sentenced under the FSG to a substantially longer period of time.

The real winner here is the military justice system. Counsel, the judge, and the panel have proven that justice in our military system has come a long, long way from the stereotypes many of us harbor. Perhaps it is the warriors on the knife's edge who know best the value of our Anglo-American system. For what many on my side of the aisle assumed was a stacked deck . . . .


Posted by: karl | Aug 7, 2008 8:45:23 PM

Apparently, being Osama's driver is less worthy of punishment than, say, wiring a few hundred grand somewhere for a drug ring.

Posted by: | Aug 7, 2008 9:08:13 PM

Why would either be worthy of punishment at all?

Posted by: DK | Aug 7, 2008 9:23:37 PM

Driving a guy around is a less serious offense than money laundering? Makes sense to me.

Posted by: Anon | Aug 7, 2008 9:29:21 PM

Karl, This isn't so much about military justice stereotypes. There remain problems.

First, there is the possibility of unlawful command influence. This has been the elephant in the room in most of these commissions.

Second, is the possibility that the administration will try and rely on the "enemy combatant" theory to hold him indefinitely. This would be met with a habeas petition in the District Court, which would essentially mean that this whole commission served no purpose.

Posted by: S.cute.us | Aug 7, 2008 11:56:36 PM


My earlier post wasn't designed to white wash what has been, as you correctly point out, the ongoing problems with the tribunals: the games played by both the military and the administration. Thanks for the catch, as I did not mean to make it seem like the proceedings are all sunshine and roses as we both know it has been anything but.

Posted by: karl | Aug 8, 2008 7:41:55 AM


I have another military justice stereotype: Many JAG lawyers get off on acting victimized by stereotypes.

A typical conversation with a JAG lawyer goes like this:

JAG: Military justice is great. Better than civilian justice
Someone else: But what about 1) UCI (which in recent years seems to be unlawful partisan political CI); 2) lack of an mechanism for expungement; 3) fact that the juries are rarely the accused “peers.”
JAG: Shut up. It is good. You don’t understand.

Col. Swift and Col. Sullivan are, of course, dedicated lawyers. And, Col. Sullivan has “street cred” outside the military. But the politics was just right for them to shine out think way outside the military box. Indeed, Col. Sullivan could play the politics like a fiddle.

Whatever the case, they didn’t really show that the system “worked.” They showed that some military lawyers could, given the right circumstances, do the right thing for their clients.

Now, of course, when they don’t think anyone is listening, there is more honest discussion. But the public face of military justice is a white-wash.

The point is that I think that for the most part military lawyers just don’t take civilian criticism well. True enough, they do some things well. But, they also don’t seem to willing to subject themselves to criticism.

Posted by: Scotus | Aug 8, 2008 8:23:48 AM

If Hamdan is an enemy combatant, then of course it would be crazy to release him while the enemy is still in the field.

Captured enemy soldiers in WWII were not held until the end of the war because they were considered criminals or were charged with anything. They were held to prevent them from re-joining the fight against us. There is no reason to do differently now.

Posted by: Bill Otis | Aug 8, 2008 8:34:33 AM

Unfortunately, Mr. Otis, your comment is the strongest indictment of the a system of military justice ever. Not only have you constantly advocated show trials without judicial review, but now you are advocating show trials without actual verdicts or sentences. The outcome is the same no matter what. Luckily, your positions are neither the law or even the government’s position.

Whatever the case, should the military not come up with a way to reconcile a few conflicting positions it has taken (some were only taken when speaking to the lay scum and were for propaganda purposes only), a habeas petition would be a slam dunk.

As a legal matter, with the facts established at trial, he wouldn’t be an enemy combatant. But, whatever. These matters really have little to do with sentencing, and will now be decided as a legal matter rather than a political matter.

It is sort of saddening that the administration has chosen such a scorched earth policy on these matters. It has made these issues simply too complex to explain to the lay people. I am not saying that I would talk to them, anyway, but still.

Posted by: S.cotus | Aug 8, 2008 10:48:18 AM

It will be interesting to see if the military actually just releases the man or if he is "processed" for an undetermined amount of time. The military only went along with this because the Supreme Court demanded it, how we'll see how much they comply.

Posted by: Joe | Aug 8, 2008 10:58:46 AM

Joe, Hamdan’s procedures (for the most part) were according to the MCA. So, if anything the military went along with Congressional demands. While there were some constitutional issues in the proceedings, they were generally the dog that didn’t bark.

When the Pentagon spokesperson was trolling the little people with his claims that they can be held indefinitely, he was under no duty to show any candor to them. There is never a duty to show candor when talking to the media. The lay people deserve nothing. (Strangely, a former US Attorney – not an AUSA taught me this.) The administrative process he alluded to release is not in the MCA. So, at best, he is stating a litigating position of the government, but more likely than not he is stating a talking point for the ears of the lay people only.

Whatever the case, in the wake of the last round at the Supreme Court, the District Courts can now order the release of him should there be any foot-dragging. It is an open question as to WHERE he should be released to, but in Hamdan's case, it seems that Yemen is willing to accept him and he wants to go back there.

Posted by: S.cotus | Aug 8, 2008 11:26:58 AM


Are you actually in favor of releasing captured enemy combatants while the conflict is still ongoing??

Good grief.

Posted by: Bill Otis | Aug 8, 2008 11:46:37 AM

Bill, The way you phrase it, it would seem like you are talking to a non-lawyer.

First of all, “enemy combatant” is not the term used in the MCA. The MCA is directed to “alien unlawful enemy combatant[s].” So, it would help if we actually followed the statutory scheme here. Granted, when talking to the lay people you can tell them anything you want. This is a serious different, there are “lawful” alien enemy combatants, and there are unlawful enemy combatants that are not aliens. Neither of those are covered by the MCA. (In fact, the MCA specifically excludes those folks.)

Second of all, a properly-constituted and acting CSRT is competent to determine – for jurisdictional purposes – whether someone is an alien unlawful enemy combatant, that jurisdictional determination does not bind the commission.

Third, (a)UEC is defined in 10 USC 948a. However, because Hamdan was not designed an (a)UEC via the CSRT process, but rather in a jurisdictional ruling by the military judge. This would mean that either the 1) the MCA doesn’t apply at all; 2) the findings of the commission have preclusive effect on whether he is an aUEC – and essentially they seem to have found that he was not within section (1)(A)(i) of 948(a).

Anyway, Mr. Otis, if you wish to make a an argument within the framework of the existing statutes or caselaw and explain why I might be wrong, go ahead. However, as an American I have no use for arguments directed at the lay people who are not true Americans.

Posted by: S.cotus | Aug 8, 2008 1:08:34 PM

"Are you actually in favor of releasing captured enemy combatants while the conflict is still ongoing??"

Wow, there's alot wrong with that question that I won't even get into.

All this man did was drive a car, nothing more, nothing less. If he broke US law, put him in jail. But to try to throw the kitchen sink at him makes us all lose credibility. And this Administration and its military tribunals don't exactly have alot of credibility left to lose.

There is no war on. You can't put someone in prison for the rest of their lives because they hate us and you're uncomfortable and don't feel safe. And with the CIA's nefarious involvement in the Middle East (thanks GHWB!) and our constant arming of each side of a military dispute, maybe their are valid reasons why we shouldn't feel safe.

Posted by: babalu | Aug 8, 2008 1:17:41 PM


I'm not making an argument (not at this stage). I'm asking a question. Since you didn't answer it, I'll ask it again: Are you in favor of releasing captured enemy combatants while the conflict is still ongoing?

Posted by: Bill Otis | Aug 8, 2008 1:42:59 PM


I asked Scotus whether he supports releasing captured enemy combatants while the conflict is still ongoing.

You respond by saying that there's a lot wrong with that question that you "won't even get into."

Fine. Then just answer it.

After that, you can explain or not explain what's "wrong" with it, as you choose.

"There is no war on."

There is no formal declaration of war, that's true. But the idea that we are not at war is nonsense, and dangerous nonsense. A friend of mine, Barbara Olson, was killed in it. She was on the plane our terrorist enemies flew into the Pentagon.

Who is it you think we're fighting in Afghanistan? The Junior League? Senator Obama proposes INCREASING our efforts there. Is he a war-mongering nut?

"You can't put someone in prison for the rest of their lives because they hate us and you're uncomfortable and don't feel safe."

I don't recall proposing any such thing. Where was that? I do recall proposing that, as in every other conflict in the nation's history, we hold onto captured enemy soldiers to prevent them from returning to the field of battle.

"And with the CIA's nefarious involvement in the Middle East (thanks GHWB!) and our constant arming of each side of a military dispute, maybe their are valid reasons why we shouldn't feel safe."

Are you saying there are "valid reasons" supporting the terrorist attacks on this country that created the feeling (and the reality) of diminished safety? What precisely do you mean by "valid reasons" and what specific actions do those "valid reasons" justify?

Posted by: Bill Otis | Aug 8, 2008 2:12:04 PM

Babalu, You are doing just what I called Mr. Otis out for. First of all, we do have a conviction for some overt acts here. Second of all, even under domestic laws, individuals can be guilty of conspiracy (or many other things) just for driving a car. Third, should make your arguments in terms of the statute and constitution. They actually support your view.

Mr. Otis, Your question is sort of biased.

First of all, I would need a definition of “conflict.” Unfortunately, at the moment, the executive has only offered the vaguest of definitions, and now they are seeking an even vaguer one. One simply can’t trust the executive with vague terms.

An “enemy combatant” who was a member of whoever the conflict is against might normally be subject to release. In fact, this is fairly common. However, the administration is not claiming that Hamdan isn’t an “enemy combatant.” At one point prosecutors argued that he was an “illegal enemy combatant.” (Which is different.) However, most, if not all, of “illegal” part of his behavior seems to have gone unproven.

So, if you can’t define “conflict” and you the administration is not holding people as “enemy combatants” (there might be a few execptions to this assertion that are not relevant here) then, SURE, release all these people that don’t exist before the end of an undefined period of time.

Posted by: S.cotus | Aug 8, 2008 2:21:14 PM


Can you point to any other armed conflict in the country's history in which we released captured enemy combatants while the conflict was still ongoing? I don't know of any, but if you do, please provide specifics.

Posted by: Bill Otis | Aug 8, 2008 2:28:57 PM

Mr. Otis,

I will answer that question, even though I don’t think it is relevant. It is not relevant because of your problem defining “conflict” and “enemy combatant.”

Despite the fact that the Confederacy was, pretty much pure evil, there were prisoner exchanges between the “combatants” (or whatever you want to call them) and the patriots. There was a fairly intricate system of exchanging prisoners. Places for transfer were agreed upon, and while equal ranks could be swapped, multiple members of the lower classes could be swapped for one member of the regular people (i.e. officers).

But, off the top of my head, how about the Korean war? Enemy combatants were released even though there was no peace treaty. Only an agreement to stop fighting.

Posted by: S.cotus | Aug 8, 2008 2:53:17 PM


Thank you for the direct answer.

The difference between the present conflict and the Civil War was that we were not fighting a foreign enemy. We were fighting our own countrymen. And of course the amount of damage any one released Confederate soldier could cause was nothing like the amount al Qaeda soldiers can (and have) caused. It took 19 of them to kill 3000 of our people. In the 1860's, Confederate soldiers did not have jet aircraft to fly into skyscrapters.

I'd also be interested in knowing whether these exchanges, such of them as there were, were accompanied by pledges not to re-join the fight.

As to Korea: Since, as you acknowledge, there was no release of enemy combatants until after the fighting had ended, our practice there supports my view of things, not yours. As any sane nation would do, once we captured enemy soldiers, we kept them until the fighting stopped.

Do you think Truman or Eisenhower should have done differently?

Franklin Roosevelt was a bit tougher about it. When we caught German soldiers and sailors on our soil, making ready to attack our citizens, Roosevelt did not merely have them imprisoned for the duration. He had them hanged.

Posted by: Bill Otis | Aug 8, 2008 3:38:40 PM

Mr.Otis, I don’t believe that the exchange of prisoners was accompanied by a promise not to fight. I am not really an expert on this era, but my understanding is that they would keep their rank and rejoin their respective militaries.

The Civil War, since it took place at a different time involved 1) different laws of war; and 2) different technology. I think we agree on both of these things. Times have changed. Weapons have gotten bigger and more destructive.

But, after the Civil War, we wrote the Geneva Conventions. They were written with the understanding that you have: that combatants are dangerous. Indeed, they even provided for indefinite detention. With that in mind, they also required the signatories to treat their captives with dignity. So, in exchange for being able to detain soldiers indefinitely, they would have to treat them right.

This administration didn’t like that idea. At the time they thought they could be cute and try and exclude people from the GCs. Or they thought they could claim that some people, even though they were not POWs would be treated like them. (E.g. the Taliban.)

I don’t really follow your assertions about what such and such a president did. The question is what the law requires. In this case, because our current president has really made a mess of things, Congress has imposed a series of statutes which tie his hands and future presidents’ hands. Luckily, I don’t think Hamdan is really that dangerous, so we don’t really have much to fear from him.

The problem with your Korean War view is that there was a coherent view of what the conflict was. You switched your term to “fighting.” Many people can argue that the “fighting” in Afghanistan has stopped. However, the administration keeps switching positions on this.

So, whatever the case, we are stuck with 1) the constitution; 2) our statutes; and 3) our treaties.

Posted by: S.cotus | Aug 8, 2008 4:28:14 PM


Just curious, why are we releasing enemy combatants in the war on crime or the war on drugs? Let Mr. Hamdan do his time and release him. To borrow a cliche, let us not become a monster to defeat a monster. The America I know and fell in love with enough to die for is bigger than any grudge we might harbor against Mr. Hamdan.

Posted by: karl | Aug 8, 2008 10:24:18 PM


To compare the "war on drugs" with the war that is being waged against us by terrorists is little more than a play on words. I'm quite sure you understand the differences between war and crime, and the consequent differences in the measures needed to deal with each.

"To borrow a cliche, let us not become a monster to defeat a monster."

It is scarcely monstrous to hold captured enemy combatants for the duration. Indeed it is SOP, for the obvious reason that to release them is to allow them to re-join the fight.

Your basic German soldier in WWII did not commit crimes and was charged with none. But if captured, he was held until the war's end. Did that make us a nation of "monsters"?

"The America I know and fell in love with enough to die for is bigger than any grudge we might harbor against Mr. Hamdan."

We're not holding Hamdan because of what you quite unfairly term a "grudge" -- a mere juvenile dislike untethered to his having provided material support to terrorism. We should hold him after his sentence -- until the fight has ended. In that regard, he should be treated no better or worse than enemy soldiers captured in previous wars.

When the war is over, they go home. Before then, they can't. FDR and Eisenhower knew this, and we ignore their example at our peril.

Posted by: Bill Otis | Aug 9, 2008 8:16:25 AM

“To compare the 'war on drugs' with the war that is being waged against us by terrorists is little more than a play on words.”

Not really. Neither one is an actual declared war. Both of them put poor people in jail.

True, there is a difference between war and crime. However, the problem here has to do with the fact that the administration decided to create a new class of behavior. It isn't “crime.” (Though, of course, some so-called terrorists have been tried as criminals.) It isn't “war” because the administration opted not to follow the law of war. (It talked about the law of war sometimes when speaking to the little people, but most of its references were not specific, and its arguments to the Supreme Court were usually different.)

I am somewhat disturbed by your constant confusion of “enemy combatants” with “illegal enemy combatants.” Whatever the case, it is now doubtful that Hamdan is even one of them. However, this would require a technical understanding of the MCA. Although I am sure that you have read the MCA, you seem unwilling to actually explain your view of it in any detail.

Another problem with your argument is that your basic German soldier DID NOT commit things that would be crimes. He would (and should) be entitled to combat immunity on the field of battle. You know this. American soldiers would be entitled to the same immunity. (Or are you arguing that American soldiers should have been tried under German law.)

Still another problem with your argument is that most detainees have not has argued that people captured in Afghanistan should not be treated as POWs. Instead, they argued that they SHOULD be treated like POWs, and, as such they could be held indefinitely. You don't seem to have read ANY briefs from ANY parties on these issues.

Anyway, Hamdan will be home in a year. This is the way the law works. You will still be saying that there is a “war” despite the fact that you can't identify 1) who the enemy is; and 2) how we would know when it is over.

Posted by: S.cute.us | Aug 9, 2008 1:54:13 PM

Bill, what is "the war"?

Posted by: Anon | Aug 11, 2008 12:44:56 AM

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