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.
I erred in a post Thursday evening on NRO’s main blog, “The Corner,” by suggesting that Judge Allred was singularly responsible for the disgraceful sentence. The error owes to my misunderstanding of commission sentencing procedure. To wit, I thought that upon finding Hamdan guilty of providing material support to our enemies, the jury (a panel of six military officers) would hear evidence at a hearing and then make a sentencing recommendation. The judge, I incorrectly believed, would then be free to follow that recommendation or not — imposing sentence in his discretion for any term of years between no time and life imprisonment.
In fact, the sentence in a commission case is imposed by the jury. As the commission rules stipulate (see here), “If there is a finding of guilt, the military commission members may impose any appropriate sentence, including death if the case is referred as a capital case[.]” (Emphasis added.) The military commission members are the jurors.
The military judge’s role at sentencing is not unimportant, but it is subsidiary. The judge may force corrections if the jury sentences outside the scope of legal authority (e.g. if the panel were to impose 30 years for a crime that carries only a 10-year sentence). More importantly for present purposes, the judge decides such matters as whether any jail time the defendant has already served gets counted against the sentence pronounced by the jury.
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.
Look, I’m a longtime veteran of the civilian-justice system. I have seen what it does in terrorism cases: the daily risks and realities of disclosing and generating sensitive national-defense information — in the middle of a hot war, provided for the benefit of the jihadists trying to kill us. Terrorists go to school on what we disclose to them. That markedly increases the risk of additional terrorist attacks and it similarly creates more risk for our soldiers in harm’s way. That ought to be unacceptable. The United States government’s first obligation is the security of the governed, not due process for the enemy.
But all that said, how does a serious person continue to defend the military system after Hamdan?
I’ve always maintained that we should withhold judgment on the relative merit of the military commissions until we have a concrete record of what an actual commission looks like. I admit that my expectations in saying that were that the military-justice system would perform well. But expectations aside, I didn’t mean the “withhold judgment” caution as a rhetorical tool with which to beat the Left. I meant it for myself, too. All of us would need to evaluate the military system honestly on the basis of how it actually performed, rather than how its fans and critics predicted it would perform.
And now it has performed.
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.
As a federal prosecutor, my first trial involved a repeat, non-violent offender who escaped from custody (a halfway house) a week before he would have been released. Given his long rap-sheet and smug lack of contrition, the judge sentenced him to ten years in prison. Any judge would have given him at least 5 years; most would have given him 10 or close to 10. He was an incorrigible fraudster.
But there was no chance he’d actually ever murder someone, or help people murder someone. There was even less than no chance that he’d ever make war on the United States — let alone put his life on the line to protect the top leader of an international terror network that has killed thousands of Americans and continues plotting to kill more. Still, five to ten years was an appropriate sentence.
By contrast, Salim Hamdan got what will amount to about six months for a war crimes conviction (i.e., a violation of the laws and customs of civilized warfare) involving the day-in and day-out protection, for years, of the terrorist enemy’s commander-in-chief.
How can I possibly, in good conscience, say that is better than what would have happened if Hamdan had been tried in a civilian court before an experienced federal judge?
The principal job of a civilian federal judge is to ensure that the parties before the court receive due process. Judges are not there to protect national security — though the ones I have been privileged to appear before have cared deeply about it. In light of their institutional responsibilities, it is only natural that judges elevate due process concerns over public safety. That means when we try national security cases before them, we run a serious risk of disclosing more intelligence than is prudent to reveal during a hot war against an enemy that uses information to become better at striking us.
Yet, unlike military courts, civilian federal judges have for years exhibited an appreciation of the seriousness of terrorism crimes. Unlike the Pentagon, they don’t take seven years to get a case done. Unlike Judge Allred, they don’t have trouble instructing a jury about the main issues in a trial. And unlike the Hamdan commission members, when sentencing time comes, they slam terrorists.
I still think that the best system would be one that combines the demonstrated strengths of the civilian courts with the military system’s potential of protecting intelligence. Congress should get busy crafting such a system.
But if we’re not going to have such a system, if our choice is civilian or military, the case for the military system is much weaker today than it was yesterday. Did we really fight for seven years so a top aide to Osama bin Laden could get six months?
— National Review’s Andrew C. McCarthy chairs FDD’s Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad.