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