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May 4, 2010

The criminal complaint in USA v. Faisal Shahzad...

can be accessed at this link.  Obviously, this case is not yet at the sentencing stage, but the complaint reveals that Shahzad is already admitting his involvement in various criminal activities.  Thus, it seems that the guilt of this defendant is not much at issue and this particular case is already functionally and perhaps soon will be formally all about sentencing.

I wonder whether Shahzad knows enough and can say enough to earn a substantial assistance 5K letter.  I wonder if the politics surrounding this high-profile case would even permit federal prosecutors to provide such a letter even if they felt it was earned.

May 4, 2010 at 06:20 PM | Permalink


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Were I back in the USAO, I would make the substantial assistance motion if he had earned it under the criteria applied to everyone else. If not, no motion.

As the case stands now, the death penalty is unfortunately inapplicable. If that continues to be so, and a SA motion is made, I would be generous -- suggesting a cut of from 200 years to 100. In supermax.

The first thing we need to be thinking about is NOT how we can get this defendant a lower sentence. It is how we can send an unambiguous message to future would-be Times Square mass murderers that, if we catch you, your fate is going to be bad news.

We've been very lucky twice in the space of four and a-half months -- first with the Christmas Day airplane bomber, and now this. Luck won't bail us out forever. You have to think the time is coming. When it arrives, I want you death penalty abolitionists to be out in force explaining why a person who cooly calculates random mass murder should serve a sentence qualitatively identical to the one you'd give to the guy who knocks over the gas station.

Think normal, fair-minded people will be buying that one?

Posted by: Bill Otis | May 4, 2010 7:48:20 PM

I just think it's weird. The more time passes and the more these incompetents come to light the more incredible 9/11 looks. Whether it be the shoe bomber or this joker it's difficult to imagine how such a competent operation as 9/11 could be followed by a series of plots that come out of yahooville. It's not just that they all failed; it's that the attacks have followed are so amateurish.

This guy got bomb training in Pakistan. By who? His grandmother?!

Posted by: Daniel | May 4, 2010 8:08:42 PM

This needs to be a death penalty offense--a mandatory death penalty offense. Let's see if SCOTUS has the balls to say otherwise.

Posted by: federalist | May 4, 2010 8:26:17 PM

federalist --

The Supremes will not buy a mandatory DP in the forseeable future. But if this guy gets charged with a death eligible offense, and the jury returns the DP, no court in the country, even stacked with Obama appointees, will overturn it.

Posted by: Bill Otis | May 4, 2010 9:46:23 PM

I think Congress should try. Push SCOTUS.

Posted by: federalist | May 4, 2010 10:37:25 PM

federalist --

THIS Congress won't try, but the next one will be a different story.

P.S. Where are all the libs? I guess some miscreants are too radioactive, so to speak, to touch. But I have no doubt that, after not all that long, the Excuse Factory will be at full blast.

Posted by: Bill Otis | May 5, 2010 12:08:38 AM

"It is how we can send an unambiguous message to future would-be Times Square mass murderers that, if we catch you, your fate is going to be bad news."

How does a long sentence (or even capital punishment, for that matter) send a "message" to someone who intends to die during their criminal act? Although it may seem cool and calculating to you, people who engage in this type of behavior are not rational and will not prove to be receptive to the same punishment structure you have in mind. Time to shift your thinking.

Posted by: Ryan | May 5, 2010 9:52:18 AM

Execute the incompetents, punishing them as if they'd succeeded, and the message to the next American-citizen recruit might be that there's nothing to lose by strapping on a bomb with a more reliable detonator and triggering it themselves.

Then, of course, not only would there be no remaining pieces big enough for Bill or federalist to punish but there'd be no opportunity to elicit information about co-conspirators.

And instead of rotting in prison as the butt of terrorist/light-bulb jokes, the executed bungler might emerge as a celebrated martyr.

BTW: Will there be any rights or liberties left to shred once the next panic sets in..."Patriot Act III, the Crackdown"?

Posted by: John K | May 5, 2010 10:26:52 AM

Bill and federalist--

Serious question--do you think that the death penalty should apply for attempted murder?

I just want to understand where you're coming from.

Posted by: Res ipsa | May 5, 2010 12:26:16 PM

For religious zealots who want to die, the death penalty isn't a deterrent. Or a punishment. Or even a disincentive.

Spending the rest of your life in a Supermax prison is a far worse fate, I would venture.

It's amazing how we constantly want to shoot ourselves in the foot to satisfy some kind of thirst for revenge.

Now go ahead and call me a liberal apologist or murderer-cuddler and show everyone how little you understand.

Posted by: tectonic | May 5, 2010 12:41:06 PM


I think the competency gap can be best explained by how al Qaeda (and their related terrorist groups) operate. Back at 9/11, they were a lot more centralized. At some point, every one of the 9/11 hijackers--along with Moussaui--had contact with the brain trust of the al Qaeda organization (esp. bin Laden and al Zawahri), which was intimately involved in the planning of the attack.

Since then, al Qaeda has become a lot more decentralized (in large part due to American military attacks on known al Qaeda areas post-9/11). So decentralized, in fact, that it's a little unclear as to exactly how much power the guys at the top even really wield at this point.

What we have seen with the last several attack attempts is a product of that decentralization. The underwear and car bombers, the Fort Hood shooter, and the idiots who actually thought they could blow up an airport by throwing a lit match in a gas exhaust about a mile away, though undoubtedly having terrorist aims, are not really part of an orchestrated attack on America. It's simply not the same types of attacks as 9/11, the 1993 WTC bombing, and the U.S.S. Cole, all of which were top-down operations. What we're seeing now is a bunch of untrained wannabes who likely have not spoken to anyone in the al Qaeda chains of command. It thus does not surprise me that so many of them have been unsuccessful.

This is also why I have some skepticism about a "war on terror" approach now. That approach worked when al Qaeda had a centralized command station in Afghanistan. It doesn't work so well when nearly every attack or attempted attack since has been by people whose only connection to bin Laden or al Zawahri is a shared ideology. I think we are far more likely to succeed with a combination of adequate preventative measures and strong law enforcement (and my hats go off to the police and FBI for their quick work in arresting the car bomber).

Posted by: Res ipsa | May 5, 2010 12:46:55 PM

Res ipsa --

I think the DP should be available as an option for the jury when the accused has engaged in (1) attempted mass murder (2) following a period of extensive planning (3) for a terrorist motive.

Reasonable minds may differ on the exact definitions of "mass" murder, "extensive planning" and "terrorist motive," but those are the basics, and under any sensible definition, they all obtain here.

Posted by: Bill Otis | May 5, 2010 1:12:20 PM

tectonic: "It's amazing how [tough acting internet chickenhawks] constantly want to shoot [western society] in the foot to satisfy some kind of thirst for revenge."

me: corrected for accuracy ;)

Posted by: virginia | May 5, 2010 1:15:39 PM

I think the death penalty should be applicable to attempted murder generally, and certainly when you attempt to kill large amounts of people.

"It's amazing how we constantly want to shoot ourselves in the foot to satisfy some kind of thirst for revenge."

Virginia executed a terrorist. We don't ever have to worry about him again.

Posted by: federalist | May 5, 2010 2:31:26 PM

Couldn't he be charged with Treason?

IIRC, Kennedy left open the possibility that the death penalty could be appropriate in a treason case even if no death resulted.

Posted by: Philistine | May 5, 2010 4:57:42 PM

Bill/federalist--Thank you for your answers. I don't think your positions are at all unreasonable--I just wanted to clarify whether they were rooted in the idea that attempted murder generally should be death-eligible, or just attempted murder for terrorist purposes.

Though I am not really opposed to DP eligibility for attempted terrorist murder, it bothers me a little bit to think about unequal application. I have no doubt that a Muslim attempting to set off a bomb in a mall would get the needle--but something tells me there will be exceptions made for the zealot that tries to bomb a clinic that performs abortions (or shoots through a congressperson's window, or sends anthrax in the mail, etc.).

Posted by: Res ipsa | May 6, 2010 10:48:24 AM

Res ipsa --

Idiosyncrasy is unavoidable in a jury system (probably in any system, actually). It is all the more so given that the Supreme Court demands, rightly in my view, individualized consideration in every capital case.

If A and B both have committed crimes that warrant the DP, and A gets it because he keeps shouting at the jury that he did it to honor Allah, and B escapes it because she "only" hates Congress or abortions or Bush or Obama, etc., the outcomes may well be unbalanced in some sense, but not in a way that should benefit A. The key fact is that A deserved it on the merits of HIS OWN CASE. That someone roughly equally odious doesn't get it is an injustice to the public, but doesn't change A's culpability or dessert.

Posted by: Bill Otis | May 6, 2010 5:31:13 PM

Posted by: Res ipsa | May 5, 2010 12:26:16 PM

I've said numerous times I believe execution should be the default rule for any felony and that clemency should be the exception. Attempted murder, especially in a case where the plan failed rather than being foiled would be far up that list.

Posted by: Soronel Haetir | May 6, 2010 8:03:29 PM

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