Gitmo trials and indefinite detention

One of the puzzling things about Salim Hamdan's military commission trial for conspiracy and supporting Al Qaeda was that even though he received a light sentence - and was acquitted of several of the charges - he can still be detained indefinitely. In principle, this means that even though he has to serve only five more months of his sentence, he can be incarcerated until the end of his life. How come? Michael Dorf (in this FindLaw column) gives a quick and clear explanation that clarifies the main legal distinction and raises the right questions. Highly recommended!

In a nutshell, Hamdan's trial before the military commission was for crimes the government claimed he had committed - supporting Al Qaeda etc. He was convicted of some of the crimes and received a sentence of 5-1/2 years. His overall detention at Guantanamo, however, has been justified with his status as unlawful enemy combatant, which was determined by a review board, not the military commission that tried him for crimes. Technically, then, there are two different reasons to detain him for different time periods, although these reasons are linked, since Hamdan's role as bin Laden's driver led to his capture as an enemy combatant.

Of course, the fact that this distinction has been drawn by the administration and its lawyers (and the fact that it is used to justify detention without judicial review) does not mean that it should be drawn. Dorf, for one, argues that the administration cannot indefinitely detain people like Hamdan whose sentence is not for life (or who have not been convicted in military court). Part of the debate is whether the Global War on Terror is a conventional war, and whether the "war" in GWOT is a metaphor (as in War on Poverty) or an actual international war (as in WWII). Dorf: "the analogy to conventional war is a poor fit for terrorism suspects. Those determinations justify [Hamdan's] initial detention, but in an era of a perpetual war on terror, due process should require something more for continued detention." If you want to read the other side, see Justice Roberts's dissent in Boumediene v. Bush.

Rejecting the view that the GWOT is a conventional war, Dorf suggests civil commitment as a model for detainees who are dangerous, with periodic review of their continuing danger. More can be found on Dorf's blog, which I find worth checking periodically.