Attorney General Eric Holder (WDCpix)

When Attorney General Eric Holder announced earlier this month that the suspected plotters of the Sept. 11 terrorist attacks would be tried in civilian court, he also promised to seek the death penalty for all of them. But the heated debate that followed over the supposed dangers of trying “the worst of the worst” in a New York federal court has largely eclipsed the question of whether the death penalty is actually the best punishment for convicted terrorists.

Image by: Matt Mahurin

“It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” wrote Ken Gude, associate director of the International Rights and Responsibility Program at the Center for American Progress, in a report released earlier this month. “Al Qaeda will exploit an execution by the U.S. government as a significant propaganda victory, no matter how fair and legitimate the trial,” he added in an article in The Guardian.

Even former Attorney General Michael Mukasey said last year that he hoped that these men would not be executed. Asked by students at the London School of Economics in 2008 whether he thought the Sept. 11 defendants, who were then facing military commission trials, should get the death penalty, he said: “I kind of hope they don’t get it. Because many of them want to be martyrs and it’s kind of like the conversation, you know, 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.”

Other legal experts agree, but for different reasons. “I think the fact that the defendants want to be executed shouldn’t count either way,” said Michael Dorf, a law professor at Cornell University, who advocated against the death penalty for these suspects when they faced military commission trials last year. “However, I do think it is legitimate for the government to worry about the possible counter-productivity of the death penalty here. That is, if the government had concluded that executing [Khalid Shaikh Mohammed], et al were likely to substantially aid Al Qaeda in recruiting, a decision not to seek the death penalty could be based in part on that worry.” According to Dorf, executing the men not only wouldn’t deter other terrorists from committing similar crimes, but could even encourage them.

This debate comes at a difficult time for President Obama and his attorney general. The president has promised to close the Guantanamo Bay detention center by Jan. 22, but faces huge challenges. Those range from where to try the suspected terrorists housed there to where to send those that have been cleared for release but can’t be sent home due to potential persecution or political instability. Republicans, citing the dangers to the United States of trying terrorists on our soil and claiming the terrorists don’t deserve the rights accorded to criminal defendants in federal court, have pushed to try most terror suspects in military commissions. Many Democrats, prominent legal experts and former military leaders, on the other hand, have argued that civilian federal courts are better-equipped to handle such cases and would confer a legitimacy on the trials that is critical to restoring the United States’ reputation around the world. In deciding to try the Sept. 11 suspects in federal court, then, the Obama administration is eager to look like it’s still being tough on terrorism and its perpetrators. That may be influencing the decision to seek the death penalty.

Other countries have faced similar debates in the face of repeated terrorist attacks, and ultimately decided that executing terrorists was counterproductive. Although the death penalty is now outlawed in all European Union countries, when the U.K. House of Commons debated whether to repeal the death penalty in Northern Ireland in 1973, there was widespread agreement that executing terrorists, who often wanted to martyr themselves, would only lead to increased violence and terrorism.

The question raises a classic conundrum for criminal law theorists. Punishment in the American justice system is supposed to punish the criminal in a way that seems proportionate to the crime and also deter others from committing similar acts. But if suicide bombers are blowing themselves up for the cause, how much of a deterrent is the death penalty to these sorts of terrorists?

“It doesn’t make sense as a deterrent,” said Columbia Law Professor Jeffrey Fagan in an email. “Deterrence assumes a rational actor who perceives that the punishment costs exceed the benefits of the crime, and who will not act against his or her own self-interest. in this case, the punishment is no match for either the rewards of striking a significant blow at ‘The Great Satan’ or the rewards of martyrdom.”

Richard Dieter, Executive Director of the Death Penalty Information Center, agrees. “Terrorists expect to die or want to die,” he said. “There’s a chance that the death penalty feeds into that.” After the federal death penalty in the U.S. was expanded in 1994 to include terrorism, Dieter notes, “the very next year Timothy McVeigh blows up the Oklahoma federal building. So I don’t think anybody believes it’s much of a deterrent. It might even be an attractor.”

Of course, another purpose of criminal punishment is retribution. Under that theory, the criminal is supposed to get his just desserts –– an eye for an eye, in biblical terms. “For retribution, it doesn’t matter what his preferences are,” says Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania Law School.

“Simply put, these monsters who specifically target civilians have no right to live,” wrote Rabbi Stuart Weiss, director of the Jewish Outreach Center of Ra’anana,in a recent op-ed in the Jerusalem Post, arguing that Israel, which has abolished the death penalty for almost all crimes, should reinstate it for terrorists. “They have forfeited the most basic human privilege by virtue of their crimes; any punishment save death is too good for them and is an obscene insult to the grieving victims of terror.”

It’s the classic notion of retribution. “The idea is that you return to the defendant what he has inflicted on the victim,” said Finkelstein. She herself doesn’t really think that’s possible, though. “There is no way to kill this man nearly 3,000 times, or force him to experience what his victims suffered as they tried to escape the twin towers,” she said.
Still, logical and even strategic considerations are often not what guides such decisions.

“There’s a lot of politics involved,” says Dieter. The Obama administration’s latest decisions on closing Guantanamo and trying terror suspects in federal court has opened it up to a rash of criticism from conservatives . “Maybe it’s part of this total picture that we’re closing this prison down there but that doesn’t mean we’re going to be soft on them,” said Dieter. “Once you open up the whole political world, the calculations are different.”

Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder surely knew he’d be facing a tough audience when he prepared to testify to the Senate Judiciary Committee on Wednesday. That may be why instead of delivering the written testimony he’d prepared, he focused his opening remarks on explaining his decision, announced last Friday, to try the alleged co-conspirators of the September 11, 2001 terrorist attacks in a New York federal court.

As I reported a few months ago, because the U.S. has declared war against Al Qaeda–and KSM is quite obviously a member of Al Qaeda–they can claim legal authority to detain him even post-acquittal, until the end of hostilities, under the authority granted by the Authorization to Use Military Force. The Bush administration considered doing this briefly with Osama bin Laden’s limo driver, Salim Hamdan–but because it makes a mockery of the American system of justice, they decided against it. But the options don’t actually end there.

“They have three sources of authority that would allow him to detain him, one of which is the AUMF, because it directly cites the 9/11 attacks in its language–the people who planned the 9/11 attacks are combatants, and are detainable under the AUMF,” Ken Gude, a human rights expert at the Center for American Progress explains. “Under the .000001 chance that they are acquitted, they will have that authority to detain them,” Gude says.

I’m awaiting all the liberty-loving Tea Partiers to start ranting about Obama Show Trials any minute now.

We, the members of September Eleventh Families for Peaceful Tomorrows, support the Attorney General’s decision to bring the trials of the five individuals currently accused of plotting the attacks of Sept 11, 2001 to a New York federal court.

Each of us lost a loved one in those attacks. We are dedicated to true justice.

We believe in our country and we believe in our time-tested federal legal system that has, to date, convicted 195 terrorists who are now being held in maximum security prisons in the US. In the 100 years of their existence, no one has ever escaped these secure units. We trust that the guilty will be tried and judged in this venue, as federal courts have many tools to convict and will not need to rely on the results of interrogations tainted by torture.

In open and transparent court, we will again show the world who we are: a fair and just people. Family members, many of whom reside in or near New York, will be able to choose to see the proceedings, as will the whole world, and attest to the fairness of the process. We are confident that the authorities can secure our safety, as they have done for these last eight years.

Conversely, we are troubled that some of the Guantánamo accused will be tried under the Military Commissions Act of 2004, essential parts of which have been struck down by the Supreme Court, and altered by the Congress multiple times. This system is a new and untested one, and we fear that any of those convicted in these secret tribunals could have convictions overturned by further legal alterations to the basic law.

New York is a great city which stood strong, a symbol of our nation’s strength, through the horrific attacks. Physically and psychologically, New Yorkers can and will live through the challenges of these nationally painful trials, and our nation, united as Americans dedicated to justice and our nation’s highest ideals, will emerge ever the stronger.

For a harsh position against the terror trials, here’s a 9/11 families’ group allied with Liz Cheney, whom my colleague David Weigel aptly describes as the most influential deputy assistant secretary of state in American history.

Glenn Greenwald has pointed out the irony of Republicans now raising fears of another terror attack simply because the president has decided to prosecute terror suspects in a way that’s consistent with American values.

But some important points are being drowned out by the hysteria. Retired Adm. John Hutson, now the dean of Franklin Pierce Law Center, yesterday observed that “there’s no particular reason to believe that if terrorists are going to take vengeance on the US for prosecuting these people, that that’s going to happen at the location or at a hard target.” A federal supermax prison or high-security New York City jail is actually “the least likely place for vengeance to be taken,” given the obstacles presented by all the security, he said on a conference call organized by Human Rights First. “The logical consequence of that stream of logic is that we not prosecute them at all to avoid some form of retribution.”

The other point largely overlooked is that while Attorney General Eric Holder announced plans to try the alleged 9/11 plotters in federal court, he also announced that the suspected USS Cole bomber, among others who’ve attacked U.S. soldiers or military targets, would be tried in the newly reconstituted military commissions. So are they getting a lesser trial?

“Despite the changes enacted by Congress this year, that untested system does not have the track record of fairness and justice that our criminal justice system has,” said Sen. Russell Feingold (D-Wis.) yesterday, after praising the decision to try KSM and his alleged co-conspirators in federal court.

Col. Morris Davis, the former chief military prosecutor for the commissions, made this important point Sunday in The Wall Street Journal: having two different justice systems “establish[es] a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”

Another former military prosecutor, Lt. Col. Darrel Vandeveld, who resigned his post in protest last September, echoed that yesterday. “To say that you’ve achieved the gold standard for certain defendants by holding their trials in federal courts, and the rest can go to Gtmo, doesn’t necessarily resurrect the image of Gtmo or the military commissions as beacons of fairness. And if one of the stated goals in closing Gtmo is to restore America’s moral position in the world, the decision taken today won’t get us closer to accomplishing that.”

Holder’s justification for trying the Cole bomber and others by military commission is that in each case, their targets were a U.S. soldier or military installation. But isn’t that what we use our regularly constituted military courts for? Isn’t that why Major Nidal Malik Hassan, who last week apparently shot up 13 soldiers at the Fort Hood military base, is being tried by court martial? The only difference would appear to be that the suspects headed for military commissions are not American citizens. So that’s why they get an inferior justice system?

That decision combined with the implicit acknowledgment in Holder’s  announcement yesterday that U.S. federal courts a superior form of justice to the military commissions just highlights a question that’s becoming increasingly difficult to answer:  Just what is the purpose of those new military commissions?

The question of where Khalid Sheik Mohammed, the self-proclaimed mastermind of the attack, and four of his alleged assistants would be tried has been hotly debated for months now, with the administration leaning towards the federal court system and some Republicans and conservative Democrats insisting they don’t deserve the rights that system affords.

Attorney General Eric Holder is expected to make an announcement and provide further explanation later today.

The result is that Maj. Nidal Hasan, the Army psychiatrist who allegedly gunned down 13 people at the military base in Texas last week, is unlikely to get the death penalty. Meanwhile, John Muhammad, the sniper who shot dead at least 10 people in Virginia in 2002, was executed for his crimes last night.

In fact, there hasn’t been a military execution since 1961, The Associated Press reports today. Although there have been death sentences, an execution order signed by President George W. Bush last year for a former Army cook convicted of multiple rapes and murders in the 1980s has been stayed. And five men sentenced to capital punishment still sit on death row in Fort Leavenworth, Kans.

The disparity in penalties between military and civilian courts has a parallel in the military commission system, which likewise has so far meted out shorter sentences to the few convicted terrorists it’s tried than the civilian one has.

Whether the perpetrator of last week’s mass murder will be spared execution remains to be seen. But lawmakers clamoring for military trials for the five 9/11 suspects as a way to look extra tough on terrorism ought to be careful what they wish for.

That’s just one of several sure-to-be-controversial recommendations the group makes in a new report released Tuesday.

CAP also wants the president to prosecute the suspected 9/11 conspirators in civilian federal courts, contrary to the calls of some lawmakers, like Senators Graham, Lieberman, McCain and others who insisted they be tried only in military commissions. (Their efforts to push through legislation to that effect failed last week.)

And, despite the fact that these five men are accused of the largest mass-murder ever on U.S. soil, CAP wants the president not to seek the death penalty for any of them. “It is in the strategic interests of the United States to deny these most heinous Al Qaeda terrorists what they want most: martyrdom,” writes Ken Gude, Associate Director of the International Rights and Responsibility Program and author of the new report.

As for the use of the military commissions that the president just revived by signing new legislation last week, those “remain tainted by Bush-era mistakes, and must be limited—if used at all—to battlefield crimes in order to gain a measure of legitimacy.”

Gude also recommends limiting military detention to actual enemy fighters captured in combat zones. Right now, the administration claims the right to seize and detain indefinitely suspected al-Qaeda or Taliban terrorists found anywhere in the world.

Those concerned that the Bagram detention center in Afghanistan is becoming “Obama’s Gitmo,” as it’s increasingly called, may not appreciate Gude’s final recommendation. While Gude would imprison anyone convicted in U.S. criminal courts in U.S. prisons, as we usually do, he recommends transferring anyone now at Guantanamo who will remain in military custody — either to be tried by a military commission or simply to be detained indefinitely — to the U.S.-run prison at Bagram.

While that might sound logical, particularly given the strong political objections to transferring Guantanamo detainees to the United States, civil and human rights advocates are likely to point out that it would not only allow the Obama administration to continue — indefinitely — the troubling practice of indefinite detention, but would place those indefinitely detained even further beyond the reach of U.S. courts than they were at Guantanamo. After all, the Supreme Court ruled that Guantanamo detainees have the right to challenge their detention through a writ of habeas corpus in federal courts; most Bagram detainees, on the other hand, do not have that right.

Advocates such as Human Rights First, which issued a new, highly critical report on the detention and trials of detainees in Afghanistan this month, have complained that the military procedures there don’t afford prisoners a meaningful way to challenge their detention. The report, based on interviews conducted in April, found that prisoners were often not informed of the specific reasons for their detention, were not provided with lawyers to represent them, and were not allowed to bring witnesses to speak on their behalf or challenge the evidence presented against them.

New detention review procedures implemented in September could solve some of those problems, although detainees still don’t get legal representation. In Gude’s view, while the administration “can and should do more,” Obama officials “are making good progress on procedures at Bagram.”  Ultimately, he says, the U.S. detention system there has to be better connected to Afghan law.

Whether we ought to be placing our hopes for due process and rule of law in the Afghan legal system, which suffers from plenty of its own serious problems, is a whole other question.

The amendment, S.A. 2669, to the Commerce, Justice, Science and Related Agencies Appropriations Act, would have forced the government to try the suspected plotters of the 9/11 attacks in military commissions. The Obama administration opposed the amendment, but still has not announced where it wants to try the 9/11 suspects.

The Graham amendment is expected to come to a vote today during consideration of the Commerce/Justice/Science appropriations bill. The earlier Homeland Security and Defense Department spending bills already include restrictions on transferring Guantanamo detainees to the United States.

This restriction, which is reportedly backed by 150 family members of victims of the 9/11 attacks, would bar the trials of the alleged 9/11 plotters in civilian federal courts, effectively forcing them to be tried by military commissions.

The Obama administration has suggested that it wants to try the 9/11 suspects in federal court, and so far has fought to retain the power to decide where the terror suspects will be tried. Last week, Defense Secretary Robert Gates and Attorney General Eric Holder warned Senate leaders that Graham’s amendment “would be unwise, and would set a dangerous precedent.”

The administration has said it will begin announcing where it wants to try the terror suspects held at Guantanamo Bay by November 16.