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November 27, 2009

Debating the likelihood of the death penalty for Khalid Sheikh Mohammed

The Chicago Tribune has this new piece discussing the death penalty realities surrounding the prosecution of suspected terrorists in federal court.  The piece is headlined "9/11 terror trial: Justice facing 'uphill battle' on death penalty?; Some legal experts say death penalty no sure bet in Khalid Sheikh Mohammed case," and here is an excerpt:

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York.  He helped win convictions for the four acolytes of Osama bin Laden who plotted the simultaneous bombings of U.S. embassies in Kenya and Tanzania in 1998. Jurors found the four men guilty as charged, but they were divided on the punishment in the summer of 2001.  As a result, all four were sentenced to life in prison.

Some jurors said afterward they opposed a death sentence because these followers of bin Laden said they wished to die as martyrs.   "Obviously, the 9/11 crimes are as serious as you can get," Butler said, "but it is difficult to get 12 people in Manhattan to agree on a death penalty."

This month's decision by Attorney General Eric Holder to try the alleged Sept. 11 plotters in a federal court rather than in a military commission set off a legal and political battle.

Critics of the decision said a Manhattan trial poses a grave security threat to the city and that they feared the defendants would be found not guilty or escape the death penalty.  They also said they feared the perpetrators of the worst mass murder in U.S. history would use the trial to spew propaganda.

Defenders of the decision said the nation's courts have shown themselves fully capable of trying and convicting the worst of criminals.  And they said trying the accused terrorists as ordinary criminals and murderers was more fitting than treating them as warriors in a "war on terror."

Still, despite the fierce disagreements, it is not obvious that the result in these cases would be different depending on which legal system was used.   Lawyers on both sides of this dispute say they fully expect that Mohammed and his co-conspirators will be found guilty of the charges of mass murders.  And while 12 military officers on a military commission at Guantanamo might be more likely to impose the ultimate sanction than 12 New York civilians, the very limited experience to date with such commissions does not make that a foregone conclusion.

Military commissions have surprised both civil libertarians and the Pentagon by dismissing charges against some accused terrorists and giving sentences considered lenient to others. Pentagon lawyers sought a 30-year prison term for Salim Hamdan, the former driver for bin Laden.  But last year, a military judge sentenced him to serve just six more months in prison, and he was subsequently released and sent home to Yemen.

As I have noted before, limits on the reach of double jeopardy rules might enable state prosecutors to go after Khalid Sheikh Mohammed if the results of his first trial are not to everyone's liking.  But I still have faith that a jury is likely to return a death sentence if it sees convincing evidence that 9/11 would not have happened without KSM's involvement.

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November 27, 2009 at 12:19 PM | Permalink


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This is the lawyer taking over yet another part of our nation, warmaking. I respect the Sheikh far more than the self-dealing lawyer, and consider him a great warrior.

There should be no trial. He should be tortured for weeks. His family should be killed before his eyes. Then he should be executed, and have his body fed to pigs. Parachute the pigs onto the house of Bin Laden, whose address is certainly known to the CIA, and to Pakistani intelligence (how does one hide a retinue of wifes and bodyguards that size).

I would like to see the American lawyers that enabled the Sheikh to conceive and carry out his attack to go on trial in Virginia. They should be summarily executed no matter what a jury says. They are traitors.

I would like to see the other lawyers that are still second guessing and stymying our heros be arrested, tried, and executed. Any lawyer embedded in a military unit and vetoing any military action is a traitor. That list contains pro-terrorist federal judges.

Posted by: Supremacy Claus | Nov 27, 2009 12:46:34 PM

"I respect the Sheikh far more than the self-dealing lawyer, and consider him a great warrior. There should be no trial. He should be tortured for weeks. His family should be killed before his eyes."

S.C, not only are you insane, you are cruel and depraved.

Posted by: Anon 12 | Nov 27, 2009 4:05:23 PM

"To deter." I forgot.

I also respect the Sheikh's cultural traditions. Vendettas last for 100's of years. Thus, the family has to go.

This man orchestrated a pre-emptive attack on the US, in accordance with the Bush Doctrine. He took out $7 trillion from the US economy, all at a cost of $500,000. Objectively, that is good warmaking. My remedy pays respect to that achievement. He was an American trained engineer, thus the success.

The trial has no validity. It criminalizes an act of war. It takes place in the city most damaged by it, where feelings still run strong. The Sheikh was a state actor for the Taliban, and its partner, Al Qaeda. Imagine a show trial of a captured American soldier. You would say, no validity.

What do you think of the likely cost of the trial and appeals, $100 million? And that is really what it is about.

Posted by: Supremacy Claus | Nov 27, 2009 4:39:14 PM

I am not sanguine about getting the DP for KSM in NYC. It would be like trying to get 12 people in San Fransisco to say unanimously, "drugs are bad."

Still, if the federal court in SDNY isn't up to the task, I'm confident the state courts of Virginia would be. Ask John Allen Muhammed.

Posted by: Bill Otis | Nov 28, 2009 9:21:24 AM

Bill, does Virginia have a double jeopardy statute which may preclude a prosecution?

Posted by: federalist | Nov 28, 2009 10:26:31 AM

federalist --

I was a federal, not a state, prosecutor, so I am not entirely sure of Virginia law, but I would be very surprised if it forbade a state prosecution after a federal prosecution for the same offense. And even if it did, there would be a significant question whether a state charge for murders in Virginia would be the "same" as a federal charge for conspiring to commit murders in New York.

Posted by: Bill Otis | Nov 28, 2009 1:53:47 PM

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