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.”

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.

Maj. Nidal Malik Hasan (USUHSy/ZUMA Press)

The new unit created by the Obama administration to interrogate the highest-value terrorism targets is unlikely to play a role in the case of the highest-profile new potential terrorist target in U.S. custody: Army Maj. Nidal Malik Hasan, the alleged Fort Hood shooter.

The director of the new interrogation unit, FBI Special Agent Andrew McCabe — who has not been previously identified in the press as the leader of the High-Value Detainee Interrogation Group (HIG) — referred all questions about the Hasan case to the FBI’s public affairs office and said he would not be able to elaborate on HIG operations beyond an August statement by Attorney General Eric Holder announcing the group’s creation. Still, it is unlikely that the HIG would interview Hasan. Dean Boyd, a spokesman for the Justice Department’s national security division, clarified that the new group is mandated to operate “overseas only.”

Image by: Matt Mahurin

It is not clear whether Hasan ought to be considered a terrorist, and most evidence to date suggests he is better understood as a criminal suspect. An inquiry that began shortly after he allegedly shot and killed 14 people at Fort Hood on Nov. 7 has yet to determine any substantive links to extremist organizations, and reportedly indicates that he acted alone. An FBI spokeswoman, Denise Ballew, declined to comment, and referred all questions about Hasan to the U.S. Army’s Criminal Investigation Division, which is leading the Hasan inquiry with FBI support. Spokespeople for the Criminal Investigation Division did not return phone messages.

But an al-Qaeda affiliated cleric now based in Yemen, Anwar al-Awlaqi, has confirmed to The Washington Post that he communicated with Hasan, and Army psychiatrist, repeatedly before the shooting occurred. While Hasan is convalescing from wounds sustained when police officers stopped the attack, he might shed light on the circumstances that lead a very small minority of radicalized American Muslims to commit acts of extremism and even seek to connect with the broader terrorist infrastructure, which the counterterrorism community refers to as the “self-starter” or “lone-wolf” problem.

In a Senate hearing on Thursday, Sen. Joe Lieberman (I-Conn.) called the shooting a “homegrown terrorist attack,” a point not entirely accepted by his panel’s witnesses. Brian Jenkins, a terrorism expert with the Rand Corporation, testified that while “radicalization and recruitment to terrorism is occurring in the United States and is a security concern,” the small handful of examples of such behavior meant that American Muslim communities are “overwhelmingly unsympathetic to terrorist appeals,” a point Lieberman endorsed.

Individuals close to the HIG had mixed perspectives about whether it should play any role with Hasan. None agreed to speak for attribution, citing both the ongoing investigation into Hasan’s case and the secrecy surrounding the Obama administration’s new interrogation unit. “I can think of a lot of uses I could make of a HIG team while waiting for someone to be captured in Afghanistan,” said one such individual. “There’s no reason the HIG couldn’t be used domestically. There’s a ban on the CIA doing things in country, so they might just have to use FBI interrogators or interviewers. But aside from that I don’t see any other issues.”

A U.S. official involved with the establishment of the HIG said that it remained an open question whether Hasan is a “lone wolf with mental pathology” or someone who “latched onto extremist ideology and influence” like al-Awlaqi. As a result, there is insufficient evidentiary basis for involving the HIG, since it is unclear what actual information Hasan might have that could illuminate aspects of the broader terrorist puzzle. “I also have not seen anything that indicates known or suspected outside influence — other than firebrand al-Awlaqi’s call-to-arms, which is dangerous enough in itself — whether non-state actor or otherwise” is involved in the Hasan case, the official said.

A former U.S. counterterrorism official agreed: “The HIG is for high-value detainees and he’s not a high-vale detainee. He’s a criminal who did a heinous act.” The ex-official went on to say that if information emerged changing that picture, Army CID and FBI investigators have “a process to share information with behavioral analysis groups, [and] share with the HIG, to be careful to watch for other possible wackos.”

There are a number of investigations open into Hasan aside from the main CID-FBI probe. On Thursday, Defense Secretary Robert Gates announced the Pentagon would undertake its own review of the Hasan case to determine if its personnel missed warning signs leading to Hasan’s attack that might have prevented it. The intelligence community is reviewing what it knew about Hasan’s communications with al-Awlaqi or other extremists. Late last week, President Obama directed all relevant agencies to turn over information about those communications to his principle White House counterterrorism and homeland security adviser, John Brennan — who, coincidentally, is also the White House liaison with the HIG.

Here’s Radack’s take on how Lieberman is using the incident to scare the American populace into suspecting more Muslims are home-grown terrorists.

What struck me about the hearing yesterday was how often Lieberman and others kept calling Nidal Hassan a “lone wolf” terrorist, suggesting not so subtly that the controversial “lone wolf” provision of the USA Patriot Act ought to be re-authorized. A recent House markup of the bill removed that provision, which allows the FBI to eavesdrop and otherwise target so-called “lone wolves” who allegedly plan all on their own, without any help from known foreign terrorist organizations, to launch a terrorist attack on the United States. One reason the provision was removed is because it’s never actually been used, and the Justice Department has had a hard time making the case that it’s actually necessary and not prone to abuse.

Judging from the comments at the Lieberman-led hearing yesterday, you would have thought that the Hasan case now offers the perfect argument for why that piece of the law is needed. What none of the senators mentioned, however, was that the “lone wolf” provision of the Patriot Act wouldn’t actually apply to Hasan.

For one thing, the government’s already said that Hasan did have communications with a foreign al-Qaeda operative, and so it could have already been monitoring him under other legal authorities. The second point overlooked at the hearing is that Hasan is a U.S. citizen, and the “lone wolf” provision only applies to a “non-U.S. person.”

It will be interesting to see how the “lone wolf” idea fares at the next Senate markup session of the bill.

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.

From a statement issued by the trio:

We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases. Civilian prisons are the safe, cost effective and appropriate venue to hold persons convicted in federal courts. Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Likewise the federal prison system has proven itself fully capable of safely holding literally hundreds of convicted terrorists with no threat or danger to the surrounding community.

The scaremongering about these issues should stop.

Barr has a unique position in the conservative coalition–he left the GOP to run for president as a Libertarian candidate, but his campaign is not seen to have spoiled anything for the McCain-Palin ticket. Keene and Norquist remain conservative powerhouses, and the former played key role in making Doug Hoffman’s NY-23  campaign into a national cause.

Should the shooting incident be investigated by military authorities as a terrorist act or by civilian authorities as a criminal act?

60 percent – Military authorities as a terrorist act
27 percent – Civilian authorities as a criminal act
13 percent -  Not sure

I think the “military/civilian” wording might be skewing this, and would love to see a “clean” poll on the question.

Students of Hoekstra know that this kind of recklessness is nothing new. In 2006, when he chaired the House Permanent Select Committee on Intelligence, the man actually wrote in The Wall Street Journal that unnamed members of the U.S. intelligence community were “perhaps” leaking classified information to the press to “help al Qaeda.” I confronted him about it back then, and here’s how that went:

I asked Hoekstra about his charge that certain members of the intelligence community seek to “help Al Qaeda,” he stood by it. But, curiously, he couldn’t finger any specific Al Qaeda sympathizers in the CIA. “If I were aware of anyone by name or by position that I believe at this point in time was there because their intent was to help those who might attack us, they wouldn’t be there,” he assured.

Then why make the claim?

“You have to hold that out as a possibility,” Hoekstra explained. “I mean, every day–not every day, but on occasion, and more frequently than what we would like–we find out that the intelligence community has been penetrated, not necessarily by Al Qaeda, but by other nations or organizations that we are spying on. And so to rule out the possibility that there are people in the intelligence community that are doing this to help Al Qaeda, I think, would be naive.”

Hmm. So then it’s naive to rule out the possibility that Hoekstra, now in the business of leaking classified information to the press about al-Qaeda sympathizers being surveilled, is “doing this to help al-Qaeda.” Good to know.