Lawyer For Bin Laden's Driver Lays Out Next Steps

A military jury has handed Salim Hamdan a 5 1/2-year sentence, but he is likely to serve less than six months. Neal Katyal, a law professor at Georgetown University and Hamdan's lead counsel, says the sentence shows the administration's approach to the war on terrorism is flawed.

MELISSA BLOCK, host:

And many questions remain about where the Hamdan case goes from here on appeal. To talk about that, we're joined by attorney and law professor Neal Katyal. He argued Hamdan's case before the Supreme Court in 2006 and won a landmark ruling. The court struck down the Bush administration's original system of military commissions. Neal Katyal has been the lead civilian attorney in all of Hamdan's litigation in federal courts. And he joins us now. Welcome to the program.

Professor NEAL KATYAL (Georgetown University Law School; Salim Hamdan's Defense Attorney): Thank you very much, Melissa.

BLOCK: And first, your reaction to the sentence. The defense had asked for 45 months or less. They got 66, but it's not far off.

Prof. KATYAL: Yeah. I mean I'm only reading the same reports you are. I still haven't actually gotten a chance to talk to my - the attorneys down there. But as I understand the sentence, it's not really a five-and-a-half-year sentence. It's a sentence of four months and 22 days. That is, that the jury asked the judge at lunch, how are we to think about, in sentencing Mr. Hamdan, the fact that he's already served five years? And the judge said to them that he would subtract, whatever sentence they give, he would subtract five years from it.

So the jury knew full well what they were doing when they deliberated for that one hour. And I think it reflects the fact that what happened yesterday, which is that they saw Mr. Hamdan as a two-bit player, not one of the serious people, and that's why all of the serious charges that the prosecution threw at Mr. Hamdan such as the 9/11 bombing and the Cole bombing and the like were all things that were rejected.

BLOCK: Well, when you look at the sentence decided today and the verdict from yesterday, the split decision where Hamdan, as you say, was cleared of conspiracy but convicted of providing material support for terrorism, what do you take away from that? What do you think the jury is saying here?

Prof. KATYAL: Well, I think the jury is saying that if we want to win the war on terror, we're not going to win it by prosecuting a simple driver. And any legal system, seems to me, that takes seven years to convict someone of being a driver, is not going to be effective.

And so, what this really suggests is that the Bush administration's approach to the war on terror at Guantanamo is deeply flawed. I mean, in this case, they had every single advantage a prosecutor could dream of. They, the prosecut-, they got to write all of the rules for trial. They got to define all of the offenses to be tried. They got to write the rules of evidence that will be introduced including undertaking evidence in near-torture situations and having that be admitted. They got to borrow the defense's access to all sorts of exculpatory material until the eve of the trial.

And nonetheless, they still wind up with a sentence of four months and 22 days. I mean, this was supposed to be the Bush administration's showcase trial about the worst of the worst, and they could have selected anyone, but this is who they selected and this is the sentence they got.

BLOCK: Looking forward, what do you see as possible avenues of appeal here?

Prof. KATYAL: You know, there are so many. I mean, this trial was woefully defective in every way. I mean, the administration's view when they wrote this law of Congress two years ago was that the Constitution gave Guantanamo detainees zero rights, none. And the Supreme Court has rejected that in a series of decisions, most recently just last month.

And the result is that it's vulnerable on every ground from the evidence that was introduced, undertaken by coercion, to the fact these are the first trials in American history to only apply to foreigners and not to United States citizens. We've never had a military trial before that did that.

And perhaps most interestingly from yesterday - and I think this is what the savvy Bush administration lawyers understood - once they acquitted Mr. Hamdan of conspiracy and they convicted him on material support, they convicted him on the most legally vulnerable charge around, material support, because in order to convict him of material support, it had to be a war crime - because this is after all a war crimes prosecution. And none of the 194 nations think of material support as a war crime.

The Congressional Research Service, when the law was being passed, told Congress flatly, material support is not a war crime. And the administration's defense says, well, we can kind of make up a new war crime. But the Supreme Court has said that you can't, and this is a tradition that goes all the way back to the founding.

If you read the Philadelphia Convention Debates, one of our leading founders, James Wilson, said that, quote, "To pretend to define the law of nations and give Congress that power would have a look of arrogance that would make us look ridiculous," and I sadly fear that's what this whole Guantanamo experience has done. It's made us look ridiculous. We pretend to be talking tough on the war on terror, but we're not actually being tough.

BLOCK: At the same time, though, the lead Army prosecutor, Colonel Lawrence Morris, had said yesterday the verdict validated the system as extraordinarily fair, open and just. I mean, could you look at yesterday's decision, a conviction, and say, look, this will make it easier for more prosecutions to follow and eventually, possibly more convictions?

Prof. KATYAL: Right. What Colonel Morris is saying was the fact - they say - he said well, he was acquitted of one of the two charges, therefore it makes the system fair. And it seems to me that when someone is acquitted of one out of two charges, that doesn't, by itself, make the system fair. Lots of systems will acquit half the time including the quarter in my pocket - if I assign heads as acquittal and tails as conviction and I flip it, half the time, it's going to be one and half the other. That doesn't make the system fair.

What makes the system fair is a constitutional backdrop that says that, you know, before we put someone to death or charge them with things that life imprisonment is on the line, there are some basic constitutional guarantees that apply.

BLOCK: That's Neal Katyal, a defense attorney for Salim Hamdan. He successfully argued the case of Hamdan v. Rumsfeld before the Supreme Court. He's also a law professor at Georgetown University

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