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Saturday, October 18, 2008
Hamdan Pre-trial Confinement Issue Papers
For those following the Hamdan pre-trial confinement issue, I give you the government's motion for reconsideration here and the defense opposition here. Not a lot of time for analysis, but I will say two things. It is amazing how the defense and government are changing positions in this case compared to the normal course of things. The government arguing error that was not preserved at trial and defense arguing deference to the actions of the commission. Second, the defense says little if anything on the merits about Geneva or other go to arguments for the Hamdan camp. Interesting how that works when you already have the upper hand.
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2 comments:
It looks to me as though the defense has the better part of the argument, in light of the government's concession that the motion for reconsideration "presents a pure question of law."
RMC 1009(a) permits reconsideration post-announcement only when the announced sentence is less than the mandatory minimum or greater than the permissible maximum punishment. Neither of these exceptions appear to apply. Instead, the government is asking for reconsideration because "the sentence is the product of a legal error."
Section 950a of the Military Commissions Act, however, prohibits finding the sentence of a commission incorrect "on the ground of an error in law unless the error materially prejudices the substantial rights of the accused." The government is, in essence, asking for just that -- a finding that Hamdan's sentence is incorrect on the ground of a legal error, to wit: the military judge's instruction regarding credit for pretrial confinement. Perhaps the prosecution can try to make the case that Hamdan was materially prejudiced thereby ... but I don't see how they'd have standing to make that assertion, nor do I see how they'd succeed if they did, especially in light of his opposition.
The government is using the "Sandbox Rule:"
It's my sandbox and you'll play by MY rules!
But, seriously - after reading the pleadings, it's obvious that the "prosecution" is suffering from a serious lack of leadership. Hamdan was a case that the government should have left well enough alone and focused its resources on the "major" defendants.
Litigating this issue, which to the layperson defies common sense, makes a bad system look even worse under international law.
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