Plea Deal for Hamdan Had Been Discussed;
But U.S. Officials Rejected Idea of 10 Years in Prison for Bin Laden's Driver

Josh White; Washington Post Staff Writer
Defense attorneys and U.S. authorities had discussed a plea deal for Salim Ahmed Hamdan that would have put Osama bin Laden's former driver behind bars for at least 10 years, but senior government officials scoffed at what they thought was too short a sentence for an alleged terrorist, according to several people familiar with the talks.

Hamdan received a 5 1/2 -year sentence at a military commission at Guantanamo Bay, Cuba, last week, a term that will run out in five months because it includes time served. The unexpectedly lenient sentence took some Pentagon officials by surprise, as prosecutors had asked a military jury to sentence Hamdan to 30 years on a conviction of material support for terrorism.

Air Force Col. Morris Davis, who served as lead prosecutor at Guantanamo until late last year, said there were long-running discussions about a plea deal in Hamdan's case, adding that he remembered the sentence under consideration ranging from 10 to 12 years. Davis said that the deal was never formalized, but that he would have approved such a sentencing range had senior leaders agreed.

"I wasn't opposed to a plea deal in any case that resulted in a fair sentence," Davis said. "A deal was proposed and discussed on and off over an extended period of time. With the benefit of hindsight, it might have made sense to settle the case."

Charles Swift, one of Hamdan's attorneys, declined to discuss anything regarding plea negotiations because a plea deal did not materialize.

Charles "Cully" Stimson, who oversaw detainee affairs for the Pentagon at the time, said he spoke with a member of Hamdan's defense team in late 2006 about the possibility of a plea deal, and he agreed that the case -- against a low-level member of al Qaeda -- was not worth more than a 10-year sentence. He said he tried to reason with senior Defense and Justice Department officials but said "they were stubborn" and "rejected the notion of a 'mere 10 years.' I believe the case could have been settled back in 2006 for around 10 years."

Instead, Hamdan's case became the first full military commission at Guantanamo Bay and illustrated how a military jury could sentence a man it convicted of material support for terrorism to a relatively light sentence. It also caught the Defense Department by surprise, spurring high-level discussions about what to do with Hamdan when his sentence ends in January.

Now, U.S. officials are preparing for the possibility of having to set Hamdan free or hold him indefinitely as an "enemy combatant."

Bryan Whitman, a Pentagon spokesman, said it has always been the Defense Department's position that detainees could be held as enemy combatants even after acquittal at military commissions or after serving a prison sentence. "That's always been on our minds in terms of a scenario we could face," he said. "He will serve his time for the conviction and then he will still be an enemy combatant, and as an enemy combatant the process for potential transfer or release will apply."

Hamdan, who was convicted of lending material support to terrorism, was a test case for the military commissions system, and Defense Department officials said that the short sentence proves that the system is even-handed.

But military law experts said it is unlikely his case's outcome will predict future verdicts or sentences because of its set of facts -- including Hamdan's role as a driver and not as a terrorist fighter or operative. Some said Hamdan was representative of many detainees at Guantanamo Bay who had low-level roles in terrorism, in contrast to the alleged masterminds and important operatives in al-Qaeda and other groups.

Eugene Fidell, president of the National Institute of Military Justice, said he was not surprised by the lenient sentence because the case against Hamdan was not particularly strong. "It demonstrates, at the very least, that you cannot count on a military jury to throw the book at people," said Fidell, who teaches military law at Yale Law School. "It doesn't demonstrate the wisdom of the process, and it doesn't illustrate the fairness of the process."

Pentagon officials are pressing forward with other cases they hope will be more indicative of the hard-core terrorism they seek to prosecute, including the cases against Khalid Sheik Mohammed and four other alleged co-conspirators in the Sept. 11, 2001, attacks. Those cases, which could carry the death penalty, are expected to delve deep into the planning of terrorism that killed nearly 3,000 people in the United States.

The Pentagon also is pursuing cases in coming months against two detainees who allegedly killed and injured U.S. troops on the battlefield in Afghanistan. Omar Khadr, who was arrested when he was 15 years old after he allegedly killed a U.S. soldier with a grenade, is expected to face trial at Guantanamo Bay in October.

Gary Myers, who has practiced military law for 40 years, said military panels have a deep understanding of command structure and are loath to punish low-level players when someone higher up is responsible.

"They understand chain of command and the relative roles of people, and this guy was a nobody," Myers said. "It is really a question of how a military panel would view a four-star general's driver. He was a driver. This is a decision consistent with their military training and understanding."

Defense Department officials said there are concerns about the public perception of holding Hamdan after his prison term runs out, because the military commissions could be seen as a "show process," with no meaning to its sentences. They also worry about precedents that could be set in U.S. courts if Hamdan's attorneys immediately file a habeas corpus petition seeking his release in five months. He previously won a Supreme Court case that invalidated the Bush administration's earlier military commissions procedures.

"If you don't get to go home at the end of the sentence, what's the point of the trial?" said Swift, who represents Hamdan. "Any legitimacy they might have gained from this case is shot if they don't release him at the end of it. Hamdan believes that he will be able to go home."

Complicating the case against Hamdan is that he is from Yemen, a country where the United States has been reluctant to send Guantanamo detainees because of human rights and security concerns. Though Yemen has been lobbying to get its citizens into a repatriation program in Sanaa, the U.S. government has not agreed to do so. The only other person convicted under the military commissions system at Guantanamo -- Australian David Hicks -- was sent to Australia to serve out the final months of his prison term before earning his release.

Army Reserve Maj. Kyndra Rotunda, who was on the Guantanamo prosecution team in 2005 and is a professor at the Chapman University School of Law in California, said Hamdan's and Hicks's sentences were surprisingly short and could cause problems for prosecutors who might want to plea-bargain in the future.

"Why plea-bargain if you think you can go forward and get a few months for material support for terrorism?" Rotunda said.