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March 16, 2008

Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?

I have never quite figured out what's going on with the Justice Department under the leadership of AG Michael Mukasey, but this new piece from ABCNews has me really scratching my head.  As reported in the piece, Mukasey is speaking out against the death penalty for terrorists accused of 9/11 involvement, even though DOJ is helping with the capital prosecution of these terrorists.  Here are excerpts from this peculiar and very troubling story:

Attorney General Michael Mukasey suggested Friday that he believes the alleged 9/11 plotters held at Guantanamo Bay should not be executed if convicted.  "I kind of hope they don't get it," Mukasey said after a speech at the London School of Economics.  "Because many of them want to be martyrs, and it's kind of like the conversation ... between the sadist and the masochist." "The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it," he said.

In February, the Pentagon charged six of the 9/11 conspirators, including the alleged mastermind Khalid Sheik Mohammed. The others: Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa al Hawsawi -- who the government claims is a key financier for the attacks -- and Mohammed al Kahtani, who is alleged to have been the 20th hijacker on United flight 93 but was denied entry into the United States at the Orlando International Airport....

Of those charged in connection with the Sept. 11 attacks, "one of them at least is proud enough of it to have written to his wife that he thinks he is innocent because it was only 3,000," Mukasey said. "If those are not poster children for the death penalty, I don't know who is."

Mukasey made clear the statements are his personal opinion, and heavily qualified them. "In a way, I kind of hope, from a personal standpoint, and I can say this because the military commissions will be run by the Department of Defense not by the Justice Department -- although we are participating with them, and helping them in the prosecution, but it will be run by the Department of Defense," he said.

Still, the statement seems at odds with Bush administration policy that broadly supports the death penalty.  The record suggests the administration believes capital punishment is the most appropriate penalty for terrorists convicted of killing Americans.  The administration spent years on a failed attempt to put low-level al Qaeda operative Zacarias Moussaoui to death for what critics call his murky, overstated role in the 9/11 conspiracy.

The decision on whether to pursue the death penalty against the Guantanamo Bay prisoners will ultimately be the military's, so Mukasey's comments will likely have little practical impact.  Susan J. Crawford, a Military Appeals Court judge, is the convening authority for military commissions and will decide whether alleged terrorists should face a capital case and be eligible for the death penalty.  But given that the White House likes to speak with one voice, the low-key Mukasey might prefer that his comments not draw much attention.

Correct me if I am wrong, but it seems, from this media report, that the Attorney General of the United States has suggested to a European audience that islamofacist terrorists involved in the 9/11 attacks are "masochists" and also suggested those involved in the American system trying to bring these terrorists to justice are "sadists."

For a number of reasons, I am deeply, deeply troubled that the current US attorney general would make these kind of statements to an international audience. I am sincerely hoping that this media report on the AG's comments are inaccurate, because if they are accurate I think the comments are truly scandalous and seriously risk undermining the US position in the war on terror.  His comments cannot help me wonder whether AG Mukasey was secretly glad that his Justice Department failed to get the death penalty for Zacarias Moussaoui, and whether AG Mukasey is troubled that the Iraqi justice system executed Saddam Hussein and others who committed horrendous war crimes.

Perhaps as troubling as these comments is the lack of media attention they have drawn to date.  On every channel, I see pundits complaining about provocative comments made by a man of the cloth, Reverend Jeremiah Wright.  But the significance and potential impact of one preacher's comments to his own congregation seems to be minuscule compared to the significance and potential impact of America's top law enforcement agent suggesting to an international audience that vile islamofacist terrorists who helped kill thousands of Americans are "masochists" and that those involved in the American system trying to bring these terrorists to justice are "sadists."

Perhaps I am wrong to be so taken aback by AG Mukasey's comments.  But, especially during a weekend in which so much venom is being directed toward a preacher, I cannot help but wonder why the AG's troublesome comments are not generating A LOT more attention and criticism.

UPDATE:  Over at TalkLeft, Jeralyn has this long and effective post defending AG Mukasey's comments.  Here is part of that post:

If you are a proponent of the death penalty, you'll read Mukasey's comments one way. If you oppose it, you'll be glad we have an Attorney General who at least has occasional qualms about the death penalty and isn't afraid to express them. I'm in the latter group.  I also appreciate that Mukasey is concerned about our image in the world and how others see us.

I suppose I am pleased to that Jeralyn of TalkLeft and readers of Instapundit (via these comments) seem to agree that islamofacist terrorists who helped kill thousands of Americans should not get the death penalty.  On this front, I am proud to disagree.

ANOTHER UPDATE:  Steven Banbridge provides, on Palm Sunday no less, a distinctly Catholic response here.  And I now see from this new news report that an attorney defending the suspected terrorists is not pleased that AG Mukasey is speaking out of turn:

US Attorney General Michael Mukasey said late on Friday he hoped Guantanamo prisoners charged in the Sept 11 attacks would not receive the death penalty, even though capital punishment would be fitting. His comments were swiftly denounced by a defence attorney for one of the accused and by Amnesty International, who said they could prejudice the case....

Army Lt Col Bryan Broyles, a military lawyer assigned to defend Mohammed al-Qahtani, one of the six current death penalty cases at Guantanamo, said the case was already tainted by suspected US abuse of Qahtani.  He added that it was improper for Mukasey to comment.   “I appreciate him being on my side on the death penalty thing, but I don’t need his help,” Broyles said. The Pentagon declined to comment.

March 16, 2008 at 11:18 AM | Permalink


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Tracked on Mar 16, 2008 4:04:30 PM


I'm confused as to why AG Mukasey thought that sado-masochism would be a good analogy for a point he's trying to make. Ordinarily, people resort to analogies so that they can explain a complicated point by reference to something the audience might understand a little better.

Mukasey's point seems to be that he's of two minds on the question of whether the terrorists should be executed if convicted: (1) on the one hand, deliberate killing of 3000 people + no remorse afterward seems to be a "poster child" case for the death penalty; (2) on the other hand, these people want to be martyrs, and having the US execute them might aid their cause in some way more than keeping them alive.

I don't understand why Mukasey thought that the S&M reference might make that point clearer somehow. Based on this post, it seems to have had the opposite effect.

I understand that it's probably difficult and perhaps inappropriate for the Attorney General to make remarks like that to an international audience, and to express his personal views on the subject while claiming that his personal views are separable from DOJ's position.

Also, this seems to me to have little or nothing to do with Reverend Wright. Jeremiah Wright is nuts, has said that the United States is to blame for the 9/11 attacks, has said that United States invented HIV in order to commit genocide against black people, and until recently had official ties to Barack Obama's campaign. Regardless of what AG Mukasey has to say, we're in the middle of an election season, and it's worth asking whether Obama shares the views of this poor "man of the cloth."

Posted by: | Mar 16, 2008 11:36:27 AM

I think the point he's trying to make is that they want to be martyrs, and us killing them will grant that. If we really want to make them suffer, we should make them sit in jail for the rest of their lives. You aren't a martyr if you die of natural causes. You are one if you're executed by the "enemy."

At least, that's what I believe he's trying to say. It was a poor form of conveying that thought, if that's his thought.

I happen to agree with him, but also believe they should be forced to work to pay for their prison expenses. Hard labor is an adequate punishment over the course of their entire remaining lifespan.

Posted by: The False God | Mar 16, 2008 12:21:15 PM

I suppose I just hope that the media also recognizes that "it's worth asking" whether President Bush (and candidates Clinton, McCain and Obama) whether they share the views of the current US Attorney General. After all, AG Mukasey does not merely have official ties to the current adminstration --- he is the top law enforcement officer of the United States of America!

Notably, Senator Obama has already come out and said he does not share Reverend Wright's views. Also, Rev. Wright has now cut ties to the Obama campaign. Will Prez Bush come out and disavow these comments from AG Mukasey? Will Mukasey be fired for these remarks?

Posted by: Doug B. | Mar 16, 2008 12:21:32 PM

I think this isn't generating any backlash because its clear he is not saying we are in any way like sadists.

The joke is that if a sadist really wants to torture a masochist, he does it by NOT hitting him.

Mukasey is just saying that similarly, if we want to punish the terrorists, we do it by NOT making them martyrs.

He isn't saying that we are Sadists (or that the terrorists are masochists), just that we are in a similar situation in that in order to punish someone, you deprive them of what they crave most.

Posted by: Marshall | Mar 16, 2008 12:31:01 PM

I came over via the Instapundit link and I am just a plain old blog reader.

**Correct me if I am wrong, but it seems, from this media report, that the Attorney General of the United States has suggested to a European audience that islamofacist terrorists involved in the 9/11 attacks are "masochists" and also suggested those involved in the American system trying to bring these terrorists to justice are "sadists."**

I'd say you're wrong. It is a joke and it is pretty clearly meant to point to the paradox that executing these people would amount to providing them with what they desire most. Thus, the joke implies, it turns the notion of "punishment" in this situation on its head.

I have no idea whether that is a true assessment of their wishes, but I'd imagine even a law professor would be able to grasp the conceptual parallel between a religious fanatic for whom not being martyred seems a fate worse than death, on the one hand, and, on the other, a man who suffers more from being deprived of thirty lashes than from receiving them. My guess: the Europeans got it. I hope this helps.

Posted by: Dr. Frank | Mar 16, 2008 12:35:02 PM

Look at it from the point of view that the villains, instead of getting the martyrdom they want, will have to wake up each day in a severely limited cell without it.

Why should their punishment end immediately when it can take all the days of their lives.

Posted by: sbw | Mar 16, 2008 12:37:56 PM

Mukasey clearly is not saying that the US has acted sadistically toward the terrorists by seeking the death penalty. He's saying (jokingly, I think) that those who don't want them executed could be considered sadistic.

I'm not sure how anyone could misread this. Or why Mukasey's actual or imagined statements somehow should serve as a rodeo clown to save Senator Obama from his long overdue confrontation with the horns of his Rev. Wright dilemma.

Posted by: NCC | Mar 16, 2008 12:51:39 PM

What Dr. Frank said.

Posted by: federalist | Mar 16, 2008 12:52:36 PM

I am more than a little skeptical of the idea that these savages actually want to be strapped to a gurney and have their heart stopped with a lethal injection.

They aren't going to find martyrdom quite so glorious as they die like harvested animals.

If these jihadis really wanted to be martyred, they wouldn't have been taken alive. The fact that we took them alive indicates that some part of their brain wants to live.

But, in any case, we don't punish people according to what they think, we punish them because of what we think.

If we wanted to deter them with their own frame of reference, we would defile their bodies with pork or some such thing, to convince them that they are going to hell. But we don't do that because we don't care what they think.

We should execute these savages to state that we are not too squeamish to defend ourselves and that we value justice.
What they think is irrelevant.

Posted by: Chris | Mar 16, 2008 12:54:26 PM

"Why the !@#$..." - for the same reason that this culture can't execute a war (let alone actually declare one) in a manner that minimizes death / harm to our own men while purposely maximizing death / harm / pain... to the enemy (so they lose the will to fight): because we have rotted into a culture of altruists. Everybody is more important than ourselves is the MO of our time.
This must be displaced if we hope to win - we need rational self-interest, and it's not coming from conservatives or liberals; it's available from Objectivism.

Posted by: djr | Mar 16, 2008 12:55:10 PM

I am glad to hear some defenses of this comment, though I wonder if/when it will be applied in other contexts. If other horrible murderers claim to be martyrs to their cause --- as I think Tim McVeigh said --- will it become US policy to refuse to seek the death penalty?

I grasp, Dr. Frank, the conceptual parallels, but it seems like a terrible way to make a clumsy point that seems entirely contrary to much of our approach to the war on terror and our national views on the justice of the punishment of death.

Would AG Mukasey seek to spare Bin Laden from the death penalty if we ever caught him? Should we consider leaving Iraq ASAP given the evidence that we are creating lots of martyrs over there through the war?

Posted by: Doug B. | Mar 16, 2008 12:59:17 PM

Came from instapundit; am a consulting pension actuary, but intellectually curious about events.
You're right. Mukasey's comments were scandalous, but I he's not implying we're the sadists. Just that they want matyrdom. However it's
so blatantly stupid for him to be speaking to London Sch of Econ, deep in the heart of liberal-minded England, and the English aren't big fans of capital punishment, so why's he trying to impress them? Is getting applause that important to him?
He should stick to his guns.......tell them capital punishment is not only the right thing to do; it's the only rational thing to do. Make a simple example.......town with 100 citizens, one of whom murders children and must be sentenced. Would the townspeople and surviving members of the family want to house and feed the murderer for the rest of his life. Would they want to take turns making him meals? I don't think so. Death sentence is the only civilized thing to do.

Posted by: | Mar 16, 2008 1:00:06 PM

Prof. Berman, thanks for your initial response. As you may already know, a link from Instapundit can be both a blessing and a curse.

Posted by: | Mar 16, 2008 1:02:10 PM

** Mukasey made clear the statements are his personal opinion, and heavily qualified them. "In a way, I kind of hope, from a personal standpoint, and I can say this because the military commissions will be run by the Department of Defense not by the Justice Department -- although we are participating with them, and helping them in the prosecution, but it will be run by the Department of Defense," he said. **

I guess I should add to my earlier comments that Mukasey also seems to have made it clear that he was not speaking for the administration. While I'm not sure I agree with his point of view, is there really any practical harm to him expressing his opinion here, given that he makes it clear he's speaking for himself?

Finally, I should have included in my first message - I am a graduate student in mathematics.

Posted by: Marshall | Mar 16, 2008 1:15:21 PM

British authorities ruling Palestine hanged several members of the underground Zionist Irgun organization in the 1940s following their conviction on charge of bombing and other violent attacks. Menachem Begin, former Irgun leader and later Prime Minister of Israel, reportedly told a former British Government minister that the executions had “galvanized” his group, which subsequently hanged several British soldier in retaliation. Menachem Begin said the hangings “got us the recruits that we wanted, and made us more efficient and dedicated to the cause ... you were not sentencing our terrorists to death, you were sentencing a lot of your own people, and we decided how many”

Amnesty International “When the State Kills”, 1989 ACT 51/07/1989 p. 19

Posted by: claudio giusti | Mar 16, 2008 1:23:40 PM

The law and its application must be dispassionate and disinterested. The law is no respecter of persons. The likes or dislikes, preferences or sensibilities, of a convicted person are not variables to be given weight in the equation of justice. These individuals do not want to die; no sane person does. If OBL wants to die as a martyr, why doesn't he don a suicide belt instead of convincing horny young men with no prospect of relief and retarded women to kill themselves? No, the AG is confused by their (AQs) propaganda, and abandons the rule of law by embracing their professed desire to die. If these people are found by the tribunal with jurisdiction to be worthy of the death sentence, they should be executed. Why is this so difficult? I am a civil lawyer though I have done a death case pro bono.

Posted by: pensat | Mar 16, 2008 1:24:10 PM

It's a very old joke, dating back at least to 1970. A masochist is someone who says "Hurt Me" A sadist is someone who says "No."

(wait for the laugh)

Perhaps in-artfully used in this case, but certainly not a claim that terrorists are masochists. Just making the point that the death penalty is not a any deterrent for people willing to engage in suicide bombings. The people sentenced in the Bali bombings are trying to get their executions moved sooner.

Perhaps - when dealing with such a person - it is better to treat them the way we treat Robert Hanssen (the FBI mole.) Solitary 23.5 hours per day, exercise alone in a yard with high cement walls, never referred to by name only by number, no visitors, no personal effects, no pictures, no magazines, no video, no books less than 50 year old.

Let them live that way for another 50 years.

Posted by: dsinope | Mar 16, 2008 1:28:01 PM

I don't necessarily disagree, Professor Berman, and it may well be that the AG shouldn't be making such jokes, if only because there is always going to be some disingenuous (or, to be fair, ingenuous) person out there who will take the terms of the joke literally and write a post about it on his blog. But I don't see how willful obtuseness about his actual meaning serves any purpose other than, perhaps, to indulge in the pleasures of feigned outrage. Pretending not the get the joke in order to accuse the speaker of transgressions and implications he clearly did not intend: in other contexts, we used to call this approach "political correctness gone mad."

Posted by: Dr. Frank | Mar 16, 2008 1:37:48 PM

Dr Frank -- "Why should their punishment end immediately when it can take all the days of their lives"

Three quick reasons ---

1) "punishment ... all the days of their lives" = until a judge finds an excuse to give them a new trial because some clerk in the Govt. made a typo on a form or a liberal president McCain / Clinton / Obama commutes their sentance in an effort to kiss up to the "peaceful followers of Islam"

2)While there is life, there is their hope that some of their islamic brothers will grab enough hostages of sufficient importance to force an exchange. Don't say that it won't happen, even Israel is releasing terrorists as part of deals to try to pay off islam.

3) Why should I have to pay for these scum to live at my expense? They will be put in some place like Gitmo where they eat better than they ever have before (what was the average weight gain of those poor terrorists there? something like 20 pounds?) and where they are given everything that they ask for.

Try them in military courts and march them outside and shoot them upon the guilty verdict.

And for those that think that giving justice for their crimes will "galvanize their supporters" and "make the islamics mad" resulting in creating even more terrorists. So what? It is nothing new. Islam has been at war with western civilization since the 800s. The difference now is that we are too worried about making those who want to kill us feel bad.

Or, 'but it will make all of the moderate muslims angry at us'. What moderate muslims? Oh, you mean the ones who stopped their co-religionists as they planned 9/11, 7/7 etc? Or, do you mean the moderate muslisms that are so powerful that they have stopped the honor killings in the US, Canadian & European islamic communities? Or the moderate muslim community that stepped up and said 'these are only cartoons, allah is so powerful that he too is laughing at the unbelievers.' Or the moderates who atopped those neighborhood 'younths' who have been burning cars nightly in France?

Posted by: Mark E | Mar 16, 2008 1:51:45 PM

For the record, Mark E, that quote is not mine.

This post reminds me of this: http://thinkprogress.org/2007/09/20/bush-mandela/

Posted by: Dr. Frank | Mar 16, 2008 3:16:34 PM

I think America should always be as accommodating as possible. With that in mind, I believe we should assist as many of them as possible in their goal to achieve martyrdom.

It's only being neighborly.

Posted by: McCarroll | Mar 16, 2008 3:25:55 PM

I'm concerned about "our image in the world" too. But I conclude the opposite of the lefties. We must not be seen as losing our steadfast will and bowing to international appeasers and seen as weakening in the eyes of the enemy. We must execute these bastards forthwith. It's astounding to me that it is even a subject of debate.

Posted by: Sam | Mar 16, 2008 3:49:52 PM


The USA overseas is not viewed as lacking balls, it is viewed as lacking common sense & not sharing the common morals of the rest of Christendom in the developed world.

The international community has rejected the death penalty. They even condemn the death penalty for war crimes & crimes against humanity. Even genocide will not get you hanged in an international court. 9/11 as bad as it was, the horrible crime that it was, comes nowhere close to genocide & other crimes that will merely get you life in the ICC & similar courts.

Mukasey's speech reflects a keen understanding that we are increasingly being viewed as a pariah on the world stage, esp. in the areas of civil liberties & criminal justice enforcement. More and more countries, esp. those in Europe, are refusing to cooperate due to systematic abuses, in their eyes, of basic human liberty (like detaining their citizens in the Gitmo camps & even families of their citizens in immigration camps).

This Presidency is drawing to a close & this American Nero we have called the President for the last 8 years will so be gone. Mukasey knows this. His speech is merely an attempt to help mend the wounds, to repair the breach.

- karl

Posted by: karl | Mar 16, 2008 6:44:35 PM

This "American Nero"? Wow. Karl, do moonbats like you ever wonder why you're not taken seriously? Oh, that's right, you are still trying to peddle some story about some innocent Texas murderer claiming self-defense, when the two victims were found a football field apart. A person with that ability to self-delude (and to smear people) has little problem with over-the-top rhetoric because you know, ideology trumps facts. I do have to complement you on your originality though--usually it's ChimpyMcBushitlerHalliburton or something like that. I guess you're a little more educated than the average KosKid.

Yeah, the "civilized" community doesn't like the death penalty. So what? European justice lets terrorist killers go free, see, e.g., Mohamed Hamadi (murderer of Robert Dean Stethem). So we don't need to hear any lectures from those guys.

Posted by: federalist | Mar 16, 2008 7:08:56 PM

Doug B.
"and our national views on the justice of the punishment of death"

What national views? The US is disunited in it's view - as is shown by the large number of States which have rejected it either in law or in practice.
The contributers to your blog are equally diverse in their views.
National opinion polls show a shift in the "popular" view against the death penalty in practice.
Locally, juries are demonstrating increasing reluctance to impose the death penalty where an alternative is on offer.

The "national view" is in fact your perception or belief - nothing more. If you are trying to say that the national view is expressed by the Federal authorities - the fact is, as you rant occasionally, it is very, very ineffective in practice!

Posted by: peter | Mar 17, 2008 3:54:50 AM

So we're going to roll over in fear of what Muslims will do to us if we kill the killers remaining of 9/11? I presume that means we will just let them go, and apologize to bin Laden as well.

Let's be clear. These scum deserve nothing less than a swift execution (in front of their fellows) for acts of massive terrorism and barbarism. ANYTHING LESS would be a betrayal of the sacred trust of those they killed that day.

It's as if Mukaskey and the Liberal Left decided their lives didn't count anymore because the smart set loved the terrorists more. Hey, let's let Manson free. After all, he killed less people.

Garbage. Mukaskey is a disgrace. He ought to be canned.

Posted by: Jim Rockford | Mar 17, 2008 4:57:56 AM

federalist (and some others) - it seems you concur with and approve the position described by the sophist Thrasymachus -

"The democrats make laws in support of democracy; the aristocrats make laws that support the government of the well-born; the propertied make laws that protect their status and keep their businesses going; and so on. This belief implies, firstly, that justice is not a universal moral value but a notion relative to expediency of the dominant status quo group; secondly, that justice is in the exclusive interest of the dominant group; thirdly, that justice is used as a means of oppression and thus is harmful to the powerless; fourthly, that there is neither any common good nor harmony of interests between those who are in a position of power and those who are not. All there is, is a domination by the powerful and privileged over the powerless. The moral language of justice is used merely instrumentally to conceal the interests of the dominant group and to make these interests appear universal."

Plato hoped to civilize us beyond this by his statement -
"Friendship, freedom, justice, wisdom, courage, and moderation are the key values that define a good society based on virtue, which must be guarded against vice, war, and factionalism."

It's a lesson you would do well to learn. Hope I haven't used too many big words for you this time.

Posted by: peter | Mar 17, 2008 5:20:39 AM

“do moonbats like you ever wonder why you're not taken seriously?”

I think the only people not taken seriously at the non-lawyers. Because you have admitted that you are a non-lawyer, it now makes sense that you confuse a lot of concepts that we lawyers use to communicate with each other.

First of all, we need to clear away some underbrush. People that kill will go free. No way around it. Some people will commit crimes so “perfectly” that they won’t be detected. In the US, we have determined that it is better to let some people “go free” if the state does some violence to some other civil liberties. (I realize that you disagree with this notion, but your views have not been accepted, and your efforts to change the constitution have failed because you are simply not persuasive enough.). But not all is lost, it is a fair bet that some people that didn’t kill (or murder) will go to jail. There are many reasons for this, but most of them can be traced to simple human failings.

Second, we lawyers talk speak in terms of “procedure” and “substance.” Non-lawyers tend to confuse these basic terms, but let’s break some things down. “Substantively” a jurisdiction may choose to criminalize some behavior. Or, it may not. In the US, we democratically chose to place limits on what can be criminalized. For example, we cannot criminalize beliefs in certain religions, and there are limits upon what kind of religious practices can be criminalized. In other countries, it is perfectly normal to criminalize the practice of certain religions. On the other hand, we also talk about the procedures the state must use to put you people in jail. We speak in terms of jury trials, rights to counsel, the confrontation clause, and things like that. All of these things mean something. To the non-lawyers they usually get confusing, because they sometimes don’t like the result, or it appears random. Unfortunately, efforts to explain how the discussion about, say, the confrontation clause and Crawford, will generally fail, because the lay species is looking for a political quote.

Third, not only do I believe that you are conflating discussions about substance and procedure, but you are also conflating discussions about guilt and sentencing. This is understandable, because it starts getting complicated here. We got substantive crimes, and the means by which the state may prove them. Then, we got a rather complex jurisprudence of sentencing, which, itself has both a substantive (e.g. the Guidelines, 8th amendment issues with regard to the death penalty, Booker variances, etc.) and procedural component (e.g. the extent to which judge-found facts can be used). These are all separate issues, which you need to treat separately.

So, perhaps you want to restate your objection in more legal terms, so that we can better decode it.

Posted by: S.cotus | Mar 17, 2008 1:29:24 PM

Hmmm, interesting with more than 20 comments and not one of them has wondered why in wake of what happened with Gov. Spitzer would AG Mukaskey make comments which seem almost calculated to invite spectulation as to what he does in the bedroom.

But seriously, Mukaskey's comments seem to show that this Attorney General has actually given much more thought about the rationale behind the death penalty than some other recent government officials (and understanding of law and economics deterrence theory). I think what Mukaskey was simply saying is that while the 9/11 defendants, if guilty deserve the death penalty, there are other factors at work which counsel against application of death. The main one being that the death penalty is often sold as being a "deterrence." Thus, from what I understand Mukaskey to be saying is that he believes that with terrorism defendants, death has zero deterrence value (and perhaps even negative deterrence value because it may encourage others to conduct terrorist acts against the US). Thus, he seems to be saying (again stated in law and economics terms) that there is more deterrence value for terrorists to sentence them to LWOP because it will not enable them to be martyrs for their cause. While this is a matter of opinion, it seems strange that the same people who argue in favor of execution on grounds that it deters crime are most resistent to the opposite side of that equation that execution can actually increase certain typse of crime (specifically terrorism) by those willing to be a martyr for their cause. Of course, there is also the possibility that by making terrorists martyrs, other terrorists will seek to conduct revenge killings such that they could also become martyrs.

Obviously, to see things that way removes any context of morality out of the picture (indeed, seeing things as being rational and removing morality from the picture is one of law and economics main weaknesses) because the decision on whether to impose death or not will be decided based on the motivation of the defendant (in fact, one could see that there are potential problems under the First Amendment with this approach). However, one should not dismiss the argument out of hand (even if one is skeptical of the deterrence value of the death penalty in general) because there does seem to be a fairly rational theorectical justification that terrorism cases should not result in the death penalty due to the lack of (or maybe even negative) deterrence value.

One can disagree with Muskasey for several reasons (from either an anti death penalty or a pro death penalty position) but it seems very unfair to the Attorney General to suggest that his position is not a serious, well thought out position which deserves a serious well thought out debate. Because I do not support the death penalty, I disagree with Muskasey's remarks to the extent that they provide a justification for the death penalty in other cases, but I do appreciate the fact that he seems to have thought a great deal about the theory and practice of the death penalty - which is definitely a good thing for an AG to have done.

Posted by: Zack | Mar 17, 2008 3:13:17 PM

I am a strong supporter of the death penalty because I believe it acts as a deterrent.

But Muslims believe that martyrs go to paradise, where 40 virgins are waiting for them. These men want to be martyrs.

Therefore, in their case, I believe the death penalty is more likely to encourage them than to deter them.

So I say keep them locked up in a cell for the rest of their lives. Other than that, treat them kindly.

It is the worst thing we can do to them.

Posted by: William Jockusch | Mar 17, 2008 7:19:24 PM

Only 40 virgins? My religion offers me 200 experienced lovers just for a lifetime of recycling and donating non-perishable food items.

Posted by: S.cotus | Mar 17, 2008 7:48:39 PM

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