Habeas and Sentencing

Dearest A,

A military panel sentenced Salim Hamdan to only 5 1/2 years, a far cry from the 30-to-life asked for by the government.

That means, five months from now, he will have served his sentence.

And there's a very good chance that, five months from now, absolutely nothing will change. Mr. Hamdan will still be held in Guantanamo Bay as an enemy combatant, which the Bush Administration contends gives them the right to hold enemy combatants (i.e. terrorists) until the War on Terror ends (i.e. indefinitely).

Undoubtedly, Mr. Hamdan will then petition the US courts for habeas relief, as nearly every other detainee at Guantanamo Bay has done. Here's my question: does the fact that Mr. Hamdan has served his sentence make his habeas petition stronger?

I say yes. Granted, the justifications for criminal punishment and for holding prisoners of war, or enemy combatants, are markedly different, but they do overlap in one area -- deterrence.

One of the purposes of punishment is to prevent individuals from committing crime, now and in the future. Similarly, countries hold prisoners of war to prevent them from returning to the battlefield. In both cases, the government is attempting to prevent the individual from acting in a way contrary to the government's interests.

By imposing this sentence, a military jury has adjudged Mr. Hamdan's 5 1/2 years in Guantanamo Bay as sufficient punishment for his acts. One of the goals of that punishment is to deter Mr. Hamdan from further supporting terrorism in the future. The government's decision to continue detaining him as an enemy combatant -- because the government believes he might return to his terrorist ways -- is therefore in direct contradiction to the military panel's determination.

Just imagine if a jury sentenced a man to 5 1/2 years in prison, but then the warden refused to let him go because he believed the prisoner was still a danger to society. The warden doesn't get to make that call. Neither should the Department of Defense.

Love,
Sammy

Because We Have the Rule of Law, That's Why

Dearest A,

It's taken me a little while, but I've formulated a response to your thoughtful question. Why do we cringe when our jurists act like politicians? Because our whole system of government depends on a belief -- though it may be fictitious -- that judges are impartial.

But it's all a farce, you say? Might makes right, and why pretend any different?

Because the rule of law is a useful fiction, and one that's probably kept our society from tearing itself apart at the seams. Like many others have.

The rule of law is an opiate of the people. It makes citizens believe that something -- other than military muscle -- governs their society. And it makes citizens less likely to turn to armed uprisings as the solution to the problems.

In our society, the guardians of the rule of law are jurists. And if we suddenly lost faith in the neutral application of laws -- if we believed that only might made right, and that judges were part of that system of oppression -- then the fragile ties that bind us together might come undone.

The rule of law is not coherent. It's not reasonable. It's not even really a rule. But a firm belief in it has held our society together for the last 200 years. I think that's a useful purpose, in and of itself.

Love,
Sammy