Friday, October 17, 2008

Hamdan's Pre-Trial Confinement: Gov't Says Not So Fast Judge Allred

The WSJ Law Blog reports today (and is also reported in the WSJ online here) that the government has moved for reconsideration of the decision to award pre-trial confinement credit to GITMO detainee Salim Hamdan. According to the reports, the motion contends that Captain Allred "lacked authority to credit Hamdan for the time he served in pretrial confinement." It also provides this somewhat baffling quote from the chief GITMO prosecutor, "'The length of the sentence is a matter of indifference to us,' [Col. Lawrence] Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could re-sentence him to however many days remained until then."

There is no provision in the Military Commission rules for awarding pre-trial confinement credit. Servicemembers are, however, entitled to pre-trial confinement credit at courts-martial for confinement served in a military brig. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). However, as CAAF noted, that policy is based solely on a Department of Defense regulation, not any constitutional guarantee. See United States v. Smith, 56 M.J. 290 (C.A.A.F. 2002). We'll see how Captain Allred resolves this and, more than likely, how this issues works out on appeal---which will likely be too late to provide total relief to detainee Hamdan.


Anonymous said...

I don't even believe that the DoD Inst is still in effect anymore.

No Man said...

I believe governing DOD and at least Navy Instructions still require Allen credit. DOD 1325.7-M:

C2.4.2. Each prisoner shall receive all sentence credit directed by the military judge, as shown in the RROT. The judge will direct credit for each day spent in pretrial confinement or under restriction tantamount to confinement for crimes for which the prisoner was later convicted.

9101 Sentences to confinement adjudged on or after 27 July 2004
shall be computed per the procedures provided in DOD 1325.7-M . . .
9102 . . . Day-for-day credit provided on the
Report of Results of Trial for pretrial confinement and conditions tantamount to confinement. . . .

Dew_Process said...

Just another habeas corpus application for Hamdan, when they don't release him.

The question is also - if anyone here knows - were the members instructed on pretrial credit, and if so, did the gov't object??

brian mizer said...

The members were instructed on pretrial confinement credit only after two of the members submitted written questions asking if Mr. Hamdan would receive credit for pretrial confinement. The defense had requested no instruction on the issue of pretrial confinement credit.

We moved for both Suzuki credit and Allen credit in a written motion argued in February. The government opposed the motion. Judge Allred ruled from the bench on the issue of Allen credit on the morning of sentencing arguments. The government made no objection to his ruling or to the sentencing instructions requested by the members. A ruling is still forthcoming with respect to Suzuki credit for two years that Mr. Hamdan spent in solitary confinement. We have asked for 3 for 1 credit.

Dew_Process said...

Thanks Brian.

It would seem to me that if the Government didn't specifically object to the MJ instructing the members on sentencing credit, that they've waived bitching about it now after the fact.

Their position approaches the frivolous - assuming that the entire case against Hamdan wasn't frivolous in the first place.