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.”

President Barack Obama met Monday evening with his national security team to finalize a plan to dispatch some 34,000 additional U.S. troops over the next year to what he’s called “a war of necessity” in Afghanistan, U.S. officials told McClatchy.

Obama is expected to announce his long-awaited decision on Dec. 1, followed by meetings on Capitol Hill aimed at winning congressional support amid opposition by some Democrats who are worried about the strain on the U.S. Treasury and whether Afghanistan has become a quagmire, the officials said.

The U.S. officials all spoke on condition of anonymity because they weren’t authorized to discuss the issue publicly and because, one official said, the White House is incensed by leaks on its Afghanistan policy that didn’t originate in the White House.

As TWI’s Spencer Ackerman reported last week, an escalation of this size could test the military’s ability to fulfill the president’s request.

If President Obama orders an additional 30,000 to 40,000 troops to Afghanistan, he will be deploying practically every available U.S. Army brigade to war, leaving few units in reserve in case of an unforeseen emergency and further stressing a force that has seen repeated combat deployments since 2002.

One example of how the divergence squeezes candidates came in 2000, when most voters approved of President Bill Clinton’s work, but most had an “unfavorable” view of his post-impeachment character. That flummoxed Al Gore’s campaign when it thought about how to handle Clinton. According to Gore campaign vets like Bob Shrum, Clinton was toxic in states that he’d won twice and where the economy was booming, like Iowa.

Since Sarah Palin doesn’t have a job outside of her book tour, her “favorable” rating is all she has. Not only is it lower than Barack Obama’s favorable rating, it’s lower than a credible national candidate can really stand — Republicans argued that Hillary Rodham Clinton might be unelectable as a presidential candidate when her “unfavorable” rating was a good 10 points lower than Palin’s.

A new Rasmussen Reports telephone survey of Arizona voters finds Arpaio, famed for his crackdowns on illegal immigrants, leading Goddard, the state’s current attorney general, by 12 points – 51% to 39%. Seven percent (7%) prefer some other candidate, and four percent (4%) are undecided.

According to the survey, Goddard leads Republican Gov. Jan Brewer by a comfortable nine-point margin, and Goddard is virtually tied with State Treasurer Dean Martin. Brewer is the only one of the possible candidates who is officially in the race.

With numbers like this, could Arpaio be enticed to run for governor? And could he win?

Rumors have been swirling in Arizona for the past few months that Arpaio is mulling a gubernatorial bid, fueled by his antipathy for Goddard. The 77-year-old Arpaio was first elected in 1992, and he won re-election in 2008 by a commanding 13-point margin, with 55 percent of the vote. During that race, Arpaio raised more than $600,000 — an eye-popping sum for a countywide election. Effectively a modern-day political boss, “Sheriff Joe” is well-known for his heavy-handed tactics to combat illegal immigration and bragging about the harsh conditions in county detention facilities. He has launched investigations of numerous political opponents, including Goddard, Phoenix Mayor Phil Gordon, Maricopa County Supervisor Mary Rose Wilcox, the Phoenix New Times and the Maricopa County Superior Court.

While Arpaio remains extremely popular in Maricopa County — the home of Phoenix, Scottsdale and Tempe accounts for approximately 61 percent of Arizona’s population — Goddard has already proven himself in statewide races, having been elected attorney general in 2002, and re-elected in 2006 with 60 percent of the vote (pdf). A poll released last month by the ASU Cronkite School of Journalism and KAET found Arpaio had a 61 percent approval rating among Maricopa County voters, while the same survey found 55 percent of Arizona voters approve of Goddard’s performance. Arizona has been trending Democratic in recent years, but a Gallup poll from January found party identification in the state was essentially a dead heat, and one would be hard-pressed to find anybody in Arizona without a strong opinion about Arpaio.

All of this seems to confirm Rasmussen’s findings: If Arpaio got into the race against Goddard, he would stand a pretty good chance of winning. It’s also a safe bet that Arpaio would raise a lot of money from out-of-state illegal immigration opponents.

The Obama administration has already clashed with Arpaio on a couple of occasions. In March, the Justice Department announced it was opening an investigation into allegations of racial profiling and unlawful searches and seizures, and last month Arpaio was stripped of his authority to enforce federal immigration laws under the controversial 287(g) program.

But if the Justice Department thought Arpaio was a handful as sheriff of Maricopa County, just imagine what he could do with control of the state’s Department of Public Safety, and Republicans in control of both houses of the state legislature.

(Via Eric Kleefeld)

This post has been updated.

THEREFORE BE IT RESOLVED, that the Republican National Committee identifies ten (10) key public policy positions for the 2010 election cycle, which the Republican National Committee expects its public officials and candidates to support:

(1) We support smaller government, smaller national debt, lower deficits and lower taxes by opposing bills like Obama’s “stimulus” bill;

(2) We support market-based health care reform and oppose Obama-style government run healthcare;

(3) We support market-based energy reforms by opposing cap and trade legislation;

(4) We support workers’ right to secret ballot by opposing card check;

(5) We support legal immigration and assimilation into American society by opposing amnesty for illegal immigrants;

(6) We support victory in Iraq and Afghanistan by supporting military-recommended troop surges;

(7) We support containment of Iran and North Korea, particularly effective action to eliminate their nuclear weapons threat;

(8) We support retention of the Defense of Marriage Act;

(9) We support protecting the lives of vulnerable persons by opposing health care rationing and denial of health care and government funding of abortion; and

(10) We support the right to keep and bear arms by opposing government restrictions on gun ownership; and be further

RESOLVED, that a candidate who disagrees with three or more of the above stated public policy position of the Republican National Committee, as identified by the voting record, public statements and/or signed questionnaire of the candidate, shall not be eligible for financial support and endorsement by the Republican National Committee.

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.

I think Greg Sargent gets at the point of this: The political press will latch onto basically anything that bubbles out of the conservative press, reporting it as a 50/50 controversy, even if it isn’t one.

Via Ben Smith, Thompson says the problem with the Afghanistan war isn’t the seven years that the Bush administration presided over its deep and thorough decline, but the seven weeks that the Obama administration has taken to review how to reverse the Bush administration’s errors. It’s a mystery why that man’s presidential bid didn’t go anywhere.

Among Republicans… only 27% say Obama actually won the race, with 52% — an outright majority — saying that ACORN stole it, and 21% are undecided. Among McCain voters, the breakdown is 31%-49%-20%. By comparison, independents weigh in at 72%-18%-10%, and Democrats are 86%-9%-4%.

Again, I’m not surprised. When I covered the run-up to the 9/12 taxpayer march on Washington, I encountered multiple conservative activists who said ACORN–then in the news for the James O’Keefe/Hannah Giles sting videos–had stolen the election. From my story:

“Clinton only got elected in 1992 because Ross Perot got back in the race,” said Miller. He attributed Perot’s decision to pressure from the “Dixie mafia, Jimmy Carter’s organization — they ran half the South.” And according to Miller, Barack Obama had only won the 2008 election because of fraud by the community organizing group ACORN.

“You can assume 10 percent of Obama’s votes were fraudulent votes,” said Bench.

I’ve heard this all over the country, and there’s no basis for it whatsoever. Back in May, former Nevada GOP chairwoman Sue Lowden–now a candidate against Sen. Harry Reid (D-Nev.)–told me that ACORN did not have an effect in her state, one of several where Republicans filed pre-election lawsuits against the group.

On Election Day, recalled Nevada Republican Party Chairwoman Sue Lowden, the GOP watched the issue closely, alerted state officials to bogus registrations, and dispatched “trained people” to the polls to look for voters showing up to cast ballots under assumed names at fake addresses. None showed up. “Would it have made a difference?” asked Lowden. “No, none of our races were that close.”