WASHINGTON — The Bush administration is seeking to recall a military jury that gave a light sentence to Osama bin Laden's driver in one of the first trials at Guantanamo Bay, arguing that the judge improperly credited the defendant for time he had already spent in the detention facility.
Salim Ahmed Hamdan, a 40-year-old Yemeni captured in Afghanistan in November 2001, was sentenced in August to 66 months for providing material support to terrorism. The judge, Navy Capt. Keith Allred, credited the defendant with 61 months and eight days for time he had been detained at the U.S. military prison in Cuba, leaving Hamdan with an effective sentence of 142 days. Prosecutors had sought a 30-year term.
The government argues that Hamdan was not entitled to any credit for his pretrial detention because he was not held at Guantanamo Bay "in connection with the charges for which he was tried, but was independently detained under the law of armed conflict as an enemy combatant," according to motions filed with the military court and released last week.
According to military prosecutors, that distinction also allows the government to hold any detainee even after he has been tried, convicted, sentenced and has served his time. The government said in court papers that prosecution for violations of the laws of war is an "incidental fact" to a detainee's "wartime detention as an enemy combatant."
The August decision by the jury of six officers also left the Bush administration with a looming dilemma: either release a man it insists is still dangerous on Dec. 31, or risk a further backlash against the controversial war trials system in Guantanamo Bay by continuing to hold him on the grounds that he remains an enemy combatant.
The government said the judge erred in awarding credit, a decision Allred communicated to the jury when its members queried him. The defense insists the issue of credit was agreed upon at trial, when prosecutors expected a long sentence. But the government said it entered a standing objection before the judge briefed the jury.
Defense lawyers, noting that the government at first hailed the Hamdan verdict as a measure of the fairness of proceedings at Guantanamo Bay, ridiculed the prosecution's logic as absurd.
Hamdan's lawyers said the government's motion was a ruse "to avoid releasing Mr. Hamdan in December."
"If the government doesn't honor the verdict of the jury, it clearly demonstrates these really are show trials," said Navy Lt. Cmdr. Brian Mizer, Hamdan's military defense attorney.
Prosecutors said they are not seeking a longer sentence for Hamdan and are instead defending the principle that there is no provision under military law to award credit for pretrial time served. And, in any case, enemy combatants are not entitled to it, prosecutors said.