Will Obama Let bin Laden's Driver Go Free?

Decision on release of Hamdan key test on detention policy.

November 6, 2008— -- He has been tried, convicted and sentenced. But when Salim Hamdan finishes his time at Guantanamo this December, he may not immediately walk free.

The Bush administration has made clear it believes it could hold this Yemeni detainee past his sentence as an enemy combatant. The question now is what will President Barack Obama do?

How Obama handles Hamdan's case will be one of the first tests of the next president's attitude toward detention policy and could presage just how much he will break from the past practices of Bush administration.

"They have a delicate tightrope to walk on," said Robert Chesney, a national security law professor at Wake Forest University. "On the one hand they are being elected by people who are very critical of the war on terror. At the same time they are going to be responsible and not insensitive to the national security concern."

Obama has said he will close the prison at Guantanamo Bay, but say national security law experts, the decision alone does not address the broader problem of what to do with detainees the government still views as dangerous.

"There is this focus on closing Guantanamo as if it's the beginning and end of the issue," said Matthew Waxman, a Columbia University law professor and former Defense Department official handling Guantanamo policy. "Guantanamo is the symptom of a much large problem: that is what the United States is going to do with suspected terrorists it picks up in the continued fight against terrorism."

That is where Hamdan comes in. The former driver of Osama bin Laden, Hamdan was convicted earlier this by the military tribunal, the first war crimes trial in more than half a century. The military jury found him guilty of supporting terrorism but not of the more serious charges for conspiring to aid in terrorist attacks.

Hamdan, who has been detained since 2001, was sentenced to five and a half years, all but five months of which the judge gave him credit for based on his imprisonment. That makes Hamdan eligible for release Dec. 31.

Obama's Decision Significant to US Detention Policy

If Obama wants the military tribunals to be seen as credible, "it's very difficult to explain to the world why you would keep him after his," said Vijay Padmanabhan, a law professor at Cardozo Law School and former State Department official handling Guantanamo policy.

But even if Obama decides to release Hamdan, his case may not signal an end to all indefinite detention, national security lawyers say. The next administration could still find that other prisoners were too dangerous to be released. And now that the federal courts are reviewing the government's detention at Guantanamo, the next administration would still have judicial review of these decisions.

More than likely, any long term plan on detention and Guantanamo will take time for the Obama administration to work out.

Many of the approximately 250 remaining detainees will no doubt be repatriated to their home countries – some of whom may be more willing to aid an Obama rather than a Bush administration.

And while human rights groups have argued that prisoners should either be charged or released, many national security experts say that weighing the choice may not be that easy. Some detainees remain too dangerous for release but impossible to charge in court but because of problems with validating evidence and possible torture, they say.

"I do not think people should expect to see the Obama administration come into office and across the board abandon military detention in favor of prosecution," Chesney said. "It's easy to reap a lot of PR from closing it because it's such an icon of what people dislike about our policies. But at the end of the day there will be some hard cases."

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