Andy McCarthy writes:
In Hamdan's case, we thus have a double problem. First, the jury of military officers somehow decided that material support to our enemies, by a guy who actually protected bin Laden and transported weapons for al-Qaeda, was worth only five-and-a-half years in jail. Second, the judge then made matters incalculably worse by effectively giving Hamdan what everyone (including the judge) must know will be taken as a get-out-of-jail card: i.e., full credit for the five years Hamdan has already been in custody as an enemy combatant. That turns the 66 months into six months.
Understand: there is no requirement to try captured enemy combatants for war crimes. As the laws of war have long provided, and as the Supreme Court has recently reaffirmed, wartime enemy combatants may be held without trial for the duration of hostilities. War crimes charges are an additional measure against combatants who commit egregious law-of-war violations.
Yet, that distinction has been lost in the media's coverage. Absurdly, Hamdan is now in a better position as a convicted war-criminal than those who have merely been detained as enemy combatants without war crimes charges. The American military has managed to value terrorist war crimes as a less serious impropriety than terrorist war participation. Instead of highlighting Hamdan's conviction, the government will now spend its time explaining why he is still being held after his sentence is over.
