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.”

While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.

Faghoul Abdelli and Mohamed Terari were arrested in Afghanistan by Pakistani police following the Sept. 11, 2001 terrorist attacks. They had previously been living in Germany, where, their lawyer said, they were involved in the illegal drug trade.

The two men apparently don’t deny drug-dealing, but they’ve consistently denied they were involved in terrorism. They also claimed that they were “brutally tortured” in U.S. custody.

The Algerian prosecutor had sought a sentence of 20 years in prison on terrorism charges.

According to The Associated Press, the verdict was reported by the Algerian state news service but not by prosecutors or the government.

Scott Fenstermaker, a lawyer defending one of the men, told The Associated Press that they won’t deny their role, but will use the opportunity to “explain what happened and why they did it,” and they will provide “their assessment of foreign policy.” Fenstermaker reportedly met with his client, Ammar al Baluchi, a nephew of Khalid Sheikh Mohammed (KSM), at the Guantanamo Bay prison last week. Baluchi told him the men had discussed the trial among themselves.

Critics of the trial have complained, among other things, that KSM — who has boasted that he was the lead planner behind the 9/11 attacks, as well as many others — will use the opportunity to grandstand and spread terrorist propaganda. The alternative, however, would be to not allow them to speak at their own trial, which would hardly showcase the American principles of open government and fair trials that the attorney general presumably wants to highlight.

Justice Department spokesman Dean Boyd told the AP on Sunday that he’s not worried that the men will dominate the trial or be able to use it as a vehicle to win new recruits. “We have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disruption, as federal courts have done in the past,” he said.

The Southern District of New York, where the Justice Department wants to hold the trial, is the most experienced of all U.S. federal courts in handling major international terrorism cases.

Mohammed is the 31st Guantanamo detainee to win his petition for habeas corpus, which challenges the government’s right to continue to hold him without charge. According to David Remes, a lawyer who represents about a dozen Guantanamo detainees and closely tracks these cases, federal courts have ruled that the government can continue to detain eight of the 39 prisoners whose habeas cases have been heard.

I admit I overlooked this case, because it was initially reported as a suicide. But it’s no longer so clear that that’s the case.  now looks like that may not have been the case. Guantanamo spokesman Lt. Cmdr. Brook DeWalt told According to journalist Naomi Wolf, “the status of the investigation into Mr al-Hanashi’s death … is now a Naval criminal investigation – meaning that he is no longer considered a suicide but a victim of a murder or a negligent homicide.”

Guantanamo spokesman Lt. Cmdr Brook DeWalt, however, who I spoke to after initially writing this post, denies that interpretation. According to DeWalt, “any death is investigated by NCIS [Naval Criminal Investigative Service] on navy bases. Whether it be natural causes, whether it be suicide, criminal, across the board.”

Wolf’s “news” has just gotten a little fuzzier. What is clear, though, is that five months after al-Hanashi’s death, we still don’t know what happened to him.

In all the discussion of where the administration is going to try Guantanamo detainees, the news about Hanashi has been buried.  It’s In fact, both the Bush and Obama administrations have been extremely tight-lipped about the deaths of detainees in U.S. custody. Although the government reports when a Guantanamo detainee dies, As I’ve pointed out before, at some point the military stopped reporting the deaths of its prisoners in Iraq and Afghanistan. I’ve repeatedly asked why, and I’ve asked the Pentagon to define its current policy for reporting deaths of detainees in U.S. custody overseas.

I’ve never received any explanation. I’ll keep trying.

This post has been updated for clarification, based on DeWalt’s statement that Wolf misinterpreted his remarks.

Paul’s father, Rep. Ron Paul (R-Texas), is one of the very few Republicans pushing for the closure of Gitmo. The Rand Paul press release was pointed out to me by a supporter of the elder Paul, who’s furious that libertarian-minded donors are flocking to the younger Paul.

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.

President Obama directly acknowledged for the first time Wednesday that the prison facility at Guantanamo Bay will not close by the January deadline he set, but he said he hoped to still achieve that goal sometime next year.

Obama refused, however, to set a new deadline.

In an interview in the Chinese capital with Major Garrett of Fox News, Obama said he was “not disappointed” that the Guantanamo deadline had slipped, saying he “knew this was going to be hard.”

“People, I think understandably, are fearful after a lot of years where they were told that Guantanamo was critical to keep terrorists out,” Obama said. Closing the facility, he added, is “also just technically hard.”

As Marc Ambinder and Spencer point out, one of the questions that remains is what the administration plans to do with the dozens of detainees it deems too dangerous to release, but who “cannot be prosecuted because of evidentiary issues and limits on the use of classified material.”

This post has been updated.

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.