NYT : Bin Laden’s Former Driver Is Sentenced to 5 1/2 Years

Thursday, August 07, 2008

Bin Laden’s Former Driver Is Sentenced to 5 1/2 Years

By WILLIAM GLABERSON | August 8, 2008

GUANTÁNAMO BAY, Cuba — Salim Ahmed Hamdan, the convicted former driver for Osama bin Laden, was sentenced Thursday to 66 months in prison by the military panel that convicted him of a war crime Wednesday.

The unexpectedly short sentence was far less than military prosecutors had sought. Through more than five years of legal proceedings against Mr. Hamdan, prosecutors had pursued a life sentence, and earlier in the day, faced with Mr. Hamdan’s acquittal on the most serious charge against him, prosecutors recommended a sentence of at least 30 years and said life may be appropriate.

Mr. Hamdan’s lawyers had recommended 45 months, or less than four years, as a reasonable sentence.

The military judge, Capt. Keith J. Allred of the Navy, had already said that he planned to give Mr. Hamdan credit for the 61 months he had been held, meaning that Mr. Hamdan could complete his criminal sentence in five months. After that his fate is unclear, because the Bush administration says that it can hold detainees here until the end of the war on terror.

After just over an hour of deliberations on the sentence, the panel of six senior military officers returned to the windowless tribunal room with their sentence on the single war crimes charge for which they convicted him Wednesday, providing material support to a terrorist organization.

After the president of the panel, the most senior officer, read the sentence, Mr. Hamdan rose at the defense table, collected himself for a moment and spoke. Referring to an apology he had made to victims of terrorism Thursday morning in the same room, he began: “I would like to apologize one more time to all the members. And I would like to thank you for what you have done for me.”

After Captain Allred explained the sentence to Mr. Hamdan, he said he was not certain of Mr. Hamdan’s fate after the end of the criminal sentence, in January. “After that, I don’t know what happens,” said Captain Allred, who had developed a warm relationship with Mr. Hamdan during months of pre-trial hearings.

In the courtroom after the military panel members filed out, Mr. Hamdan, who was captured in the middle of the Afghan war on Nov. 24, 2001, hugged the former American military lawyer, Charles Swift, who has represented him here for four years and helped take his case to the Untied States Supreme Court.

The sentence came after the first war crimes trial here in a system the administration says it plans to use to try about 80 other detainees here. Twenty other detainees are already facing charges.

Supporters of the military commission system immediately said the sentence proved that the Bush administration’s system for trying detainees here was legitimate and fair. David Rivkin, a Washington lawyer who has been a consistent supporter of the administration’s detention policies, said it would be difficult for anyone to criticize the system after the sentence.

“This is an enormously compelling indication of how independent the process has been,” Mr. Rivkin said. He added that the defense had been successful in portraying Mr. Hamdan as a marginal player in al Qaeda who had no involvement in terror planning.

Mr. Hamdan’s trial featured dueling images of the former bin Laden driver, with prosecutors portraying him as an unrepentant “Al Qaeda warrior,” and the defense portraying him as a poorly educated Yemeni who drove for Mr. bin Laden, often with a weapon, because he “had to earn a living.”

The panel appeared persuaded by an aggressive defense. On Wednesday it rejected the broader of the two prosecution charges, which asserted that Mr. Hamdan, a Yemeni with a fourth-grade education, conspired with Mr. bin Laden and other top Qaeda leaders.

It was not immediately clear how the Pentagon would handle Mr. Hamdan after the sentence. For years administration officials have maintained that, because detainees facing war crimes charges here are all classified as unlawful enemy combatants, they could continue to hold an accused even if he had completed a sentence or were acquitted by a military commission panel.

The sentence, which came Thursday afternoon, came after a brief hearing in the morning at which Mr. Hamdan stood surrounded by his exhausted legal team and delivered a statement apologizing to the victims of terror in a brief statement at a sentencing hearing on Thursday.

“It was a sorry or sad thing to see innocent people killed,” he said as he leaned on the defense table and gestured gently at the military tribunal here. “I personally present my apologies to them if anything what I did have caused them pain.”

He told the military panel deciding his sentence that he had continued working for Mr. bin Laden after a terror attack in 2000 only because he felt he had no options and was trapped “between two fires,” fearing arrest for his ties to Mr. bin Laden or further involvement in his activities.

As he left the sparsely attended courtroom in the hilltop courtroom here, Mr. Hamdan, who at times has shown a mischievous sense of humor, raised his arms and said a good-natured “bye, bye” to the small group.

During pretrial proceedings, Mr. Hamdan, a father of two daughters in Yemen, and the judge, a career Navy lawyer, had regularly exchanged smiles and, on occasion, chats. Before he left the bench, Judge Allred, said a few parting words to the man he had gotten to know in a most unusual way.

“Mr. Hamdan,” Judge Allred said, “I hope the day comes that you are able to return to your wife and daughters and your country.”

“God willing,” Mr. Hamdan said in the rudimentary English he picked up while in American custody.

“Insh-allah,” said Judge Allred, repeating the same phrase in Arabic.

The sentence was the second relatively short sentence handed down here. Last year an Australian detainee, David Hicks, pleaded guilty to providing material support for terrorism in exchange for a nine-month sentence.

Mr. Hamdan’s sentence immediately provoked a new discussion of the viability of the system here.

After years of legal battles, “this relatively light sentence could not possibly have been what the prosecution was hoping for – especially after all of the time, money and resources expended,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy who is an expert on national security law.

But Professor Sulmasy said that an unintended, positive consequence of this sentence might be to strengthen the arguments of supporters of the administration’s system for war crimes trials that Mr. Hamdan’s trial demonstrated the fairness of the commissions.

Before they began deliberations, the panel members indicated they were considering rejecting the prosecution’s request for a severe sentence. The president of the panel, a Navy Captain who is the most senior member, sent the judge a note asking how they would credit Mr. Hamdan for the nearly seven years he has been in detention. The note asked, hypothetically, how the time served would be accounted for if the sentence were 10 years.

Under the rules here, four votes were required to impose a sentence of ten years or less. A sentence of more than ten years would require a vote of five of the six panel members.

Under military rules, a Pentagon official who has broad power over the military commission system here, Susan J. Crawford, has the power to reduce a military panel’s sentence but not to increase it. Ms. Crawford, who has the title of convening authority, is to review the decision here. After her decision, Mr. Hamdan’s lawyers can begin an appeals process at a military appeals court and then in civilian federal courts.

Mr. Hamdan’s statement was an unsworn plea for mercy permitted by the rules here. An unsworn statement is permitted to an accused instead of taking the witness chair and risking cross examination.

Mr. Hamdan, looking worn after a two-week trial, spoke in the makeshift courtroom here, saying his ties to Mr. bin Laden were “a work relationship only” and claiming that he had been troubled by the bombing of the American destroyer Cole in 2000 that killed 17 sailors.

He said he had once had a relationship of mutual respect with Mr. bin Laden but that after the Cole bombing, his views about his boss “changed a lot.” He said he needed money and had returned to work with Mr. bin Laden because he felt he had few options.

But a prosecutor, John Murphy, ridiculed the idea that a man would work for a killer instead of seeking other employment. He argued that there was no place for mercy, urging the panel to impose a sentence of no less than 30 years and possibly life, the maximum.

“Your sentence,” Mr. Murphy said, “should say the United States will hunt you down and give you a harsh but appropriate sentence if you provide material support for terrorism.” He argued for justice for the victims of al Qaeda’s terror attacks.

A defense lawyer, Charles Swift, reminded the panel members that Mr. Hamdan had cooperated with interrogators, providing information about places in Afghanistan linked to Mr. bin Laden.

He said a long sentence would discourage other potential sources of information about terror organizations from working with American forces. “The reward for cooperation is life?” Mr. Swift asked. “Does that help us in this struggle?”

Mr. Swift, who has represented Mr. Hamdan through years of legal battles, did not offer a proposed sentence. But he noted that the only detainee who has been sentenced by a military commission here, Mr. Hicks, received a sentence of nine months. Mr. Hicks pleaded guilty to providing material support for terrorism last year and is now free.

Mr. Swift suggested that if the panel determined that Mr. Hamdan were five times more culpable than Mr. Hicks, the sentence would be 45 months, less than four years.

Mr. Swift, a former Navy lawyer, argued that a sentence in proportion to Mr. Hamdan’s participation as a driver would help make meaningful some future verdict against the planners of the 2001 terror attacks.

“At some point,” he said, “we will bring the people who conspired, the people who brought those buildings down, and that’s going to be a great day.”

Mr. Swift said that a sentence that is modest by comparison to a potential sentence against the Sept. 11 plotters would help give that eventual sentence its proper significance. “And it will be all the more meaningful because we got the guys who did it, not the driver.”