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Although the verdict is being characterized as a "stunning rebuke" of the prosecution, who argued for at least 30 years, it is not clear that the relatively light sentence means Hamdan will be released anytime soon. As the Washington Post reports,
It is uncertain what will happen to Hamdan when he finishes serving his time in January. Military prosecutors said during the trial that an acquittal would not change Hamdan's status as a prisoner. He was declared an enemy combatant by the military in a separate proceeding, and the administration has said it can hold such combatants until the campaign against terrorism is deemed over.More trials will follow in the coming months.
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Interesting that Hamdan was sentenced to less time in confinement for supporting terrorism than the midshipman who was recently convicted of possessing child porn, yet both were sentenced to more time than the midshipman who was recently convicted of indecent assault. A comment on the relative weight military officers assign to these crimes, perhaps?
Or a call for judge alone sentencing? Kets really be like the feds. And get out of, as a recent anonymous poster said, the minor leagues. Oh wait, the prosecutor in this case was a federal prosecutor. It must have taken a lot of humble pie for him to come into such a bush league.
The defense bar must be celebrating this as a victory for terrorists.
I don't think the sentence should have been surprising to most experienced military practitioners.
1) The members obviously followed the military judge's instructions which basically told them they had to acquit of the conspiracy offense. The conspiracy was the most aggravating of the charges on which the accused was arraigned.
2) Contrary to popular belief, when compared to sentences in civilian courts, military courts usually do not impose harsh sentences, whether the offense be rape, robbery, or murder. For some time, I have studied the difference in sentencing between the military and the civilian authorities and I'm convinced that in most circumstances a defendant would fare much better on sentence in the military courts, and that is whether the individual is sentenced by judge or court members.
I admit that court members are harder to predict, but military judges don't appear to be harsh sentencers either, just more consistent.
This observation does not seem to apply to misdemeanor type offenses, in which case a military defendant is more likely to be punished more severely by court-martial than in civilian court.
The prosecution really dropped the ball on this one with the instructions. They should have read those instructions carefully, and they should have proposed their own. Instead, they made a very common mistake, one I see in both criminal and civil cases all the time here in federal court. The instructions are something all attorneys leave to the last minute, devote little time too, and routinely just overlook. Yet, improper instructions is by far your best hope on appeal.
I also don't understand the threat of a mistrial. Calling back in the jury to say they got a wrong instruction before the verdit and properly instructing them to me does not warrant a mistrial. My experience in federal court is that there would not be a mistrial declared.
To that, I still think 5.5 years was low. The members found that Hamdan supported al Qaeda and he was caught bringing SA-7 missles in to aid al Qaeda. He did more than Lindh did and Lindh got 20 years.
Of course, Hicks arguably did as much as Hamdan, if not more, and he got a deal for five years, so maybe it's not that far off.
Still, this is a valuable learning lesson for the prosecution. PAY VERY CLOSE ATTENTION TO JURY INSTRUCTIONS.
Here's a cheap way of thinking of "sentence disparity": Would you rather have Hamdan or the CP-lovin' midshipman babysitting your kids?
Anon 6:48, the Mid was sentenced judge-alone.
This is Anon 11:08
I am rethinking whether the Hamdan verdict and sentence is really bad for the government, and that, the Bush administration. (Dare I do so, I know Caaflog is no fan of the Commander in Chief.)
I just finished reading all the headlines and it is unanimous: This is a blow to the government, a disaster for the Bush administration, a failure of the prosecution.
Interesting, because leading up to the trial (and the whole time I was at the commissions), the headlines were unanimous: the trials are rigged, Hamdan will not get a fair trial, the Bush administration has ensured convictions and lengthy sentences.
Is the split verdict and 5.5 year sentence really a disaster for the Bush administration now that the claim of rigged trials and unfairness can no longer be lodged?
With the press it is simply the old joke, the press watches President Bush fish, his hat falls out into the water, President Bush notices a little while later, walks on the water to get the hat, headlines the next day:
President Bush Cannot Swim
it's very easy to take the media accounts of the process and say it was good or bad for the government or the accused. However, I venture a guess very few of the contributors here saw all of the evidence from both sides so all comments are really speculative in nature and not based on fact. I will note, however (and I am not a fan of the commissions) that the hew and cry of rules of evidence that allow for hearsay is one of the largest inequities of the entire process. I chuckle as it seems that the accused took advantage of that by introducing hearsay from KSM that basically said that Hamdan was nothing more than a drive. Interestingly though I never heard once reporter not "military justice expert" talk about that. Had this happened 5 years ago I doubt there would be the outrage.
Well, since Hamdan cooperated to a large degree, if the news reports are accurate, maybe releasing him would be fair. Though Al-Queda may wish to speak with him about that. Or maybe the Saudis would take him off your hands.
I can hear the defense celebrations there in DC all the way from Pendleton. I can hear the whining chorus of "we're just defending the system" which is apparently what they tell each other, not believeing it.
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