This article first appeared in the St. Louis Beacon: August 7, 2008 - The military panel of six officers deliberated for about an hour before returning the lighter than expected sentence for providing material support for terrorism. The government had asked for a sentence of 30 years and said that the life sentence prosecutors had sought earlier would be appropriate. The defense recommended 45 months.
The judge, Navy Capt. Keith J. Allred, has said he will count the 60 months that Salim Hamdan has served toward his sentence. That would mean he would be free in six months unless the government presses its claim that it can hold enemy combatants until the end of the war on terrorism.
After the senior member of the military panel announced its sentencing decision, Hamdan reiterated last week's apology to victims of terrorism. He said, "I would like to apologize one more time to all the members. And I would like to thank you for what you have done for me.”
Capt. Allred told Hamdan he didn't know what would happen to him after he completes his sentence in January.
Bobby Chesney, an expert on national security law at Wake Forest, said in an Internet post that the typical sentence for material support to terrorism is 120 months. He based that estimate on a study he has done of terrorism cases.
Chesney wrote: "Some of you may be wondering how that compares to typical sentences for material support convictions under 18 USC 2339B, the charge most analogous to Hamdan’s offense of conviction. The median sentence is 120 months, though the figure is 180 months if you focus only on those convicted at trial rather than by plea agreement (the Lackawanna Six defendants, for example, received sentences of 120 months or less after their pleas)."
Earlier this week the military panel had found Hamdan not guilty of conspiracy but guilty of material support for terrorism.
Critics have continued to ridicule the fairness of the military trial because it lacked many of the protections of a normal criminal trial. The New York Times editorial on Thursday, for example, was titled "Guilty as Ordered." It faulted military trials for their lack of fair process. The trials admit hearsay and secret documents and a conviction requires only two-thirds of the military panel that sits as jurors. Human Rights Watch also has catalogued the procedural flaws it sees in the process.
On the other hand, the Hamdan case could be seen as American justice at its best. In an earlier incarnation, Hamdan's case went to the U.S. Supreme Court, which struck down the scheme for military commissions that the Bush administration then had in place. Earlier in this Hamdan trial - the first of the military trials to move ahead - some coerced testimony was excluded from evidence.
If the Bush administration insists on keeping Hamdan in military custody after his release date, Hamdan would seem to have the right to seek a writ of habeas corpus from a federal court, right up the Supreme Court.