The Criminal Lawyer

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to the acquittal of Ahmed Ghaliani — the first Guantanamo detainee to be tried in civilian court — of more than 280 charges stemming from the bombings of U.S. embassies in Africa.

The Obama administration is fighting against it, with AG Holder writing a (fairly lame, in our eyes) letter insisting that we absolutely must use civilian courts to deal with terrorists and captured combatants.  Essentially, his argument is that civilian courts are a tool that has worked before, so why deny that tool to the executive branch and make it fight the bad guys with one hand tied behind its back?

Ignore the ham-handed attempt to co-opt a common complaint about the left’s frequent insistence on soldiers doing actual fighting with one hand tied behind their backs, lest they rile someone’s sensibilities.  It’s a dumb argument.  Guantanamo detainees didn’t commit crimes within the territorial jurisdiction of the United States.  Their acts are acts of war, or of transnational combat that is more like war than anything else.

Congress is gearing up to do the right thing, but for the wrong reason.  The principle should not be “we can’t do this because we might lose in court” — that’s not even a principle.  It’s just a weakling’s worry.  The principle should be “we can’t do this because it’s wrong.”

First off, soldiers are (more…)

In August, Osama bin Laden’s driver Salim Hamdan was sentenced by a military commission at Guantanamo Bay to 66 months, with credit for time served.

It is now reported that, on September 24, the military prosecutors moved for reconsideration of that sentence. Their basis for reconsideration is that the military commission that sentenced Hamdan lacked the power to give credit for time served.

“The length of the sentence is a matter of indifference to us,” said head prosecutor Col. Lawrence Morris. So far as the government is concerned, Hamdan can get out in December as scheduled or whenever. But though the sentence itself is unimportant, the procedural method is a big deal to the prosecution.

It would appear that this is so because perhaps 80 of the Guantanamo detainees are looking at military commissions, rather than courts-martial. A court-martial could impose a time-served sentence. The government is fearful that the Hamdan case sets a precedent so that these 80 commission-sentenced detainees could also receive time served.

If the government wins its argument, Hamdan could be resentenced to a short term allowing him to get out in December, or he could be compelled to serve a further 62 months.

Needless to say, this is a compelling issue with high stakes for the government, the defendant, and a lot of detainees. It will be very interesting to see how this plays out.