2/21 Motions Hearing #4: Hamdan, Ex Post Facto

In AE201, the defense seeks “Hamdan” credit for Al-Nashiri’s period of confinement, and thus to invalidate military commission rules that bar the court from doing so after a sentence has been imposed.  Judge Keith Allred famously did this some years back, by reducing the sentence imposed on Bin Laden’s former driver, by crediting him for much of his longtime detention at Guantanamo.  But the Military Commissions Manual took the option off the table, afterwards---and, according to AE201, violated the federal Ex Post Facto clause.

Judge Pohl asks CDR Brian Mizer about the legal requirement of credit for pre-trial confinement.  The source is due process, answers Al-Nashiri’s attorney.  His argument is brief, but boils down to this: Mizer wants Judge Pohl to go the Allred route, and preserve the court’s power to credit Al-Nashiri for a long stay in Guantanamo, come sentencing time.  The issue is ripe for litigation now, moreover, given the looming trial; Mizer urges the court not to keep kicking this and other case-critical cans down the road.

Lt. Bryan Davis picks up where Mizer left off.  No, this issue isn’t ripe, as we’re a good ways off from trial, and even a longer way off from any sentencing.  (When asked, Davis says the issue would be teed up upon conviction.)  At any rate, Ex Post Facto issues only come into play when there’s a change in the legal rules that existed at the time of an accused's conduct; and here, no rule has ever established a law of war detainee’s subsequent entitlement to pre-trial confinement credit, upon conviction of a war crime.  Sure, the defense cites some federal civilian precedents here and there, but the statutes involved in those cases specifically exempt military courts from their application.  Unless and until the defense can drum up some authority for its Hamdan Credit Theory, it cannot carry its burden.  Davis lastly notes that Judge Allred’s determination was unique to him; and at also that, in any event, Allred partially denied Hamdan’s request for some pretrial confinement credit, to the extent the request implicated law-of-war detention during hostilities.  Davis is done.

Back to Mizer and to due process.  It’s about fairness, he says.  There was a constitutional right to pretrial confinement credit at the time of charging in this case; Al-Nashiri still holds that right now.  The no-credit rule should therefore be invalidated, in his opinion.