Back in August, before the election and the economy ate my brain, I wrote about the verdict and sentence in the case of Salim Hamdan, the Guantanamo detainee who was a driver for Bin-Laden. As you may recall, the government brought very serious charges in this case and the military jury rejected the top counts and imposed a much shorter sentence than the government sought. I suggested it was an important expression of the power of the jury to check government excess. Mr. Hamdan’s sentence should soon end, although many believe he will continue to be held by this Administration on the well known legal theory that the unitary executive can do whatever it wants, whenever it wants, where ever it wants, whatever the law might say.
But now it seems even that will not satisfy our government. The Wall Street Journal reports that they want to revisit the sentence and now argue that the judge lacked authority to give Mr. Hamdan credit for the time he served in custody prior to sentencing. Effectively, they are seeking a sentence five years longer than that imposed by the military jury, even though that jury exercised its sentencing power after it had been instructed he would receive credit for time served. Although government lawyers say they don’t care what sentence he gets and they are only trying to get the law right, principles of waiver and basic fairness suggest to me that they should fight that battle in a subsequent case, not this one.
Perhaps I paint with too broad a brush, but even in the waning days of this Administration, my mind still boggles at the damage government lawyers have done to the law over the past eight years. Guantanamo and political hiring at justice are the signal examples of the harm that flows when lawyers with real power act on the view that the righteous need not be constrained by law.
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