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February 11, 2008

Guantánamo detainee cases now about sentencing issues

As I have often said on this blog, all big public policy matters eventually become sentencing issues in some way. This New York Times article, headlined "U.S. Said to Seek Execution for 6 in Sept. 11 Case," highlights why GITMO prosecutions are now here:

Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday.  The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.

A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.”  The officials spoke anonymously because no one in the government was authorized to speak about the case.  A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial....

Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.

But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother.  Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten.  “My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”

In my view, the provisions of the federal Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, can and should be read to grant rights in GITMO prosecutions to all the victims of the September 11 attacks.  Notably, key provisions of the CVRA, like § 3771(a)(5) and (c)(1), provide crime victims with a "reasonable right to confer with the attorney for the Government in the case" and require "the Department of Justice and other departments and agencies of the United States" to "make their best efforts to see that crime victims are notified of, and accorded, the[ir] rights" under the CVRA.

I wonder if DOJ and all federal officials involved in these GITMO cases have reached out to all the 9/11 victims to get their input on the decision to seek the death penalty.  I wonder if Professor Paul Cassell or others who work on CVRA issues on behalf of crime victims might get more involved in GITMO matters now that the death penalty is on the table.

February 11, 2008 at 03:43 AM | Permalink


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If rights are recognized under the CVRA, then rights to restitution under the MVRA would surely follow.

Posted by: Ronald Humphreys | Feb 11, 2008 6:25:40 AM

Oh, come on, to you, everything is about sentencing. But, because serious questions about the legitimacy of the MC process remain, any sort of rigorous policy and procedural analysis really is the furthest from anyone's mind.

Posted by: S.cotus | Feb 11, 2008 9:38:17 AM

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