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The Flexibility of the Military Commissions

The military commissions now operating at Guantanamo Bay are more flexible than the federal civilian courts established pursuant to Article III of the Constitution. This flexibility affected Mr. Hamdan’s defense, especially the trial strategy that he could adopt and the sentence he ultimately received. Some of this flexibility is built into the military commissions system. For example, although the military commissions’ rules largely incorporate the military, federal and common law rules of evidence, they nevertheless do not exclude evidence “on the grounds that the evidence was not seized pursuant to a search warrant or authorization.” In addition, they attempt to apply the rule that “[e]vidence shall be admissible if … [it] would have probative value to a reasonable person.”

Some of this flexibility is de facto, rather than de jure, simply because there exists no large body of legal holdings on the procedures of the Military Commissions Act to impose precedent limiting the discretion of these new commissions. That legal clean slate might have been intentional. Perhaps the administration wanted to try the persons at Guantanamo apart from the thousands of criminal procedure opinions on the books written by Article III judges. Or, perhaps, the clean slate is simply a necessary ancillary to trying a new solution.

The most significant effect of the flexibility in the military commissions system, however, is freedom from the sentencing guidelines created by Congress and the Sentencing Commission. Had the Hamdan defense been operating under a regime governed by the Sentencing Guidelines, I believe that his strategy would have needed to be different. Also, in the event of a conviction, his sentence likely would have been far longer.

Professor Williams reported that: “As for the charges of driving Bin Laden around and protecting him, the Defense chose not to contest these charges. Clearly he was guilty on that count and freely admitted to having done so all along.” That admission would have been very costly under the Sentencing Guidelines, even though the Guidelines are not mandatory.

Just one of the five specifications of which the jury found Mr. Hamdan guilty was Charge II, Specification 2, which reads in part: “Hamdan, in context of or associated with an armed conflict and with knowledge that al Qaeda has engaged in or engages in terrorism, did provide material support or resources, to wit: personnel, himself … by .. [s]erv[ing] as Usama bin Laden’s armed body guard … [and] transport[ing] weapons or weapon systems.” That makes out all the elements of the civilian crime of Providing Material Support to Terrorists in violation of Title 18, United States Code, Section 2339A as well as of Providing Material Support or Resources to Designated Foreign Terrorist Organizations in violation of Section 2339B.

The applicable sentencing guideline for Section 2339B is §2M5.3. Even assuming that a sentencing judge does not find that Mr. Hamdan’s actions resulted in death or were “tantamount to attempted murder” (a reasonable assumption because the jury acquitted Mr. Hamdan on the conspiracy charge), the base offense level is 26 plus two additional levels for involvement of a firearm or dangerous weapon. Sentencing Guideline §3A1.4 states that “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels” and “[i]n each such case, the defendant’s criminal history category … shall be Category VI.” So, his base offense level just for that one admitted charged specification would be 40 (26 + 2 +12). That with a Category VI criminal history generates a guidelines sentencing range of 360 months (30 years) to life.

The civilian material support statutes cap the sentence of imprisonment at fifteen years, “unless the death of any person results.” It is not yet clear how attenuated a resulting death may be in order to lift the maximum sentence from fifteen years to life or death. Even though, the sentencing guidelines are not mandatory, it stills seems highly likely that a conviction under 2339B for even just the admitted conduct would generate a sentence greatly in excess of what Mr. Hamdan received.

The sentencing guideline for 2339A, the other material support statute, is the same one for aiding and abetting. It says: “The offense level is the same as that for the underlying offense.” The application note states that “‘underlying offense’ means the offense the defendant is convicted of having materially supported.” What would that underlying offense be? Could a judge have identified an underlying offense committed by Osama Bin Laden and supported by Mr. Hamdan that did not result in death? If not, then the Sentencing Guidelines range again would have been life imprisonment.

The Guidelines generate these ranges even in the face of the acquittal for conspiracy. Conspiracy requires an agreement and at least two aspects of knowledge: knowing participation or membership in a scheme and some knowledge of the unlawful aims and objectives of the scheme. See, United States v. Lanza, 790 F.2d 1015 (2d Cir. 1986). That, it seems, is where the military jury found the government’s evidence insufficient on Charge I. Material support does not require a single scheme and knowledge of its aims and objectives. The language in Charge II (uncontested according to Professor Williams) admits the mental state required by the civilian material support statute. Also, federal criminal law provides that: “Whoever commits an offense against the United States or aids [or] abets its commission, is punishable as a principle.” “Materially supporting” and “aiding and abetting” are closely related concepts. An admission to providing material support might well legally provide the factual basis for other criminal statutory offenses that would require lengthy mandatory minimum sentences -- quite possibly a mandatory life sentence.

In short, had Mr. Hamdan been charged in our “regular” courts, his defense likely would have needed to choose a different trial strategy, or else his sentence would almost certainly have been much longer. Was he fortunate to have been tried by a military commission?

William C. Snyder is Visiting Assistant Professor of Law, Institute for National Security and Counter-Terrorism, Syracuse University College of Law.

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