August 8, 2008 | National Review Online

More on Hamdan’s Disgraceful Sentence

This is actually much worse than I thought, and I apologize to readers for an error on my part, about which I’ll have more to say in an article tomorrow.

Basically, I misunderstood the commission sentencing procedure.  I thought the jury (a panel of six military officers in Hamdan’s case) made a recommendation but that the sentence imposed was ultimately up to the judge.  In fact, sentence in commission cases is imposed by the jury (see here for the commission rules).  The military judge’s role at sentencing is limited to making corrections if the jury sentences outside the scope of legal authority (e.g., if the jury imposes 30 years for a crime that carries only a 10-year sentence), and, more importantly for present purposes, to decide such matters as whether any time the defendant has already served gets counted against the sentence imposed by the jury.

So here, the military officers on the jury somehow decided that material support to our enemies, by a guy who actually protected bin Laden and transported weapons for al Qaeda, was worth only 5 1/2 years in jail; then the judge made matters incalculably worse by effectively giving Hamdan what everyone (including the judge) must know will be taken as a get-out-of-jail card:  i.e., full credit for the 5 years Hamdan has already been in custody as an enemy combatant.

This turns the jury’s disgraceful 66-month sentence into a shocking 6-month sentence.  Someone may be able to defend that, but I can’t.

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