NYT : Military Panel Sentences bin Laden Driver to a Short Term

Military Panel Sentences bin Laden Driver to a Short Term

By WILLIAM GLABERSON | August 8, 2008

GUANTÁNAMO BAY, Cuba — Rejecting a prosecution request for a severe sentence, a panel of military officers sentenced the convicted former driver for Osama bin Laden to five and a half years in prison on Thursday. The sentence means that the first detainee convicted after a war crimes trial here could complete his punishment by the end of this year.

The military judge, Capt. Keith J. Allred of the Navy, had already said that he planned to give the driver, Salim Ahmed Hamdan, credit for at least the 61 months he has been held since being charged, out of more than six years in all. That would bring Mr. Hamdan to the end of 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.

The unexpectedly short sentence came after Mr. Hamdan was acquitted Wednesday of the most serious charge against him, conspiracy, having been convicted only of material support for terrorism. The extraordinary conclusion to the first of the post-Sept. 11 war crimes trials — a case that led to a landmark Supreme Court ruling in 2006 blocking a prior effort to prosecute him — once again raised many of the questions that have long surrounded the Bush administration’s military commission system here, which it plans to use to try another 80 detainees.

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

“Your sentence,” a prosecutor, John Murphy, told the panel, “should say the United States will hunt you down and give you a harsh but appropriate sentence if you provide material support for terrorism.”

Supporters of the military commission system and military prosecutors here said the sentence proved that the Bush administration’s system for trying detainees 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.

The prosecutors said they would have preferred a longer sentence, but noted that they had won a conviction. “That’s the way a fair, open system works,” said one of the prosecutors, Maj. Omar Ashmawy. “The sentence isn’t always what the government asks for.”

Defense lawyers described the verdict as a victory propelled by the military officers on the panel, but they said it did not remedy what they have described as the system’s flaws.

“What ultimately happened, in spite of the system, was justice,” said Charles D. Swift, a former Navy lawyer who has forged a close relationship with Mr. Hamdan through more than five years of battles as his lawyer.

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 on which they convicted him, 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 and spoke. Referring to an apology he had made to victims of terrorism on Thursday morning in the same room, he began, “I would like to apologize one more time.”

Earlier he had told the military panel that he had continued working for Mr. bin Laden 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.

Because the Bush administration has not announced its long-term intentions for Mr. Hamdan, Judge Allred said he was not certain of Mr. Hamdan’s fate after the end of the criminal sentence. “After that, I don’t know what happens,” said Judge Allred, who had developed a warm relationship with Mr. Hamdan during months of pretrial hearings.

Asked after the sentence if Mr. Hamdan would continue to be held after the completion of his sentence, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said he “would not speculate on that.”

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 the panel members filed out, Mr. Hamdan, who was captured in the Afghan war on Nov. 24, 2001, hugged Mr. Swift, who helped take his case to the Supreme Court. As he left the sparsely attended courtroom here, Mr. Hamdan, who at times has shown a mischievous sense of humor, raised his arms and said a good-natured, “Bye, bye everybody.”

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.”

“Inshallah,” Mr. Hamdan said in Arabic, before an interpreter gave the English translation of “God willing.”

“Inshallah,” Judge Allred responded.

The panel’s decision was the second short sentence handed down here. Last year, in the only other military commission case that has been completed, 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.

Critics of the system said their concerns about its fairness were underscored by the fact that even the judge and the prosecutors were unsure whether Mr. Hamdan would be freed at the completion of his sentence. “It was all for show if Mr. Hamdan does not go home in December,” Mr. Swift said.

In his final closing statement in the case, Mr. Swift told the panel members that he had been assigned the case while a Navy lawyer, and added that Mr. Hamdan had cooperated with interrogators, providing information about places in Afghanistan linked to Mr. bin Laden.

At the trial, the defense portrayed Mr. Hamdan as eager to work with his American captors, even helping in their hunt for Mr. bin Laden.

After the sentence, the lawyers were asked if it would be safe for Mr. Hamdan to return to his native Yemen. Charles Schmitz, a college professor who has worked for years as the defense team’s Arabic translator, said Mr. Swift had asked Mr. Hamdan that long ago.

Mr. Hamdan’s answer, Professor Schmitz said, was: “Look, you guys get me out of Gitmo. I’ll take care of Yemen.”