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.