There’s a strong chance the jihadists die in prison no matter how the government proceeds with their cases.
There’s a strong chance the jihadists die in prison no matter how the government proceeds with their cases.
W e’ve recently been discussing the 9/11 plea bargain, first agreed to by the Biden–Harris administration and then rescinded after two days of harsh political blowback. (See here and here.) Defense lawyers have accused the government of breach of contract (a plea agreement is a contract), and the military judge has authorized them to investigate whether Defense Secretary Lloyd Austin, who announced the rescission, exercised or was subjected to improper command influence over the case. (See here.)
The plea agreement was filed under seal in court at the Guantanamo Bay naval base, and the full scope of it is not publicly known. But the major terms have been reported: In exchange for guilty pleas to 2,976 murders in the suicide-hijacking atrocities and the waiver of the right to appeal, three of the jihadists — Khalid Sheikh Mohamed (KSM), Mustafa al-Hawsawi, and Walid bin Attash — would be spared the possibility of the death penalty.
There has been some confusion about what the sentence would be — i.e., a mistaken assumption that the terrorists would be sentenced to life imprisonment without the possibility of parole. That’s no doubt because in the civilian justice system with which the public is more familiar, the parties negotiate the sentence in the plea agreement. In capital cases, which are rare and tend to feature very strong evidence, the prosecution will usually only take the potential death sentence off the table if the defendant agrees to a life sentence. Formally, sentence is imposed by the judge, and in this sort of negotiated-outcome plea, the judge must impose the agreed-upon sentence. (The judge may refuse to accept the plea if there seems to be some problem, but may not alter the terms.)
Military commissions are different. The military judge makes all rulings necessary to get the case to and through trial, but the commission — the panel of military officers who sit as a jury — not only renders the verdict (guilty or not guilty) but also imposes the sentence (within parameters prescribed by military rules).
Under commission procedures, defendants are permitted to plead guilty — i.e., there need not be a trial on the issue of guilt. But there must be a sentencing phase of the trial.
The reporting about the 9/11 plea deal anticipated that the terrorists would plead guilty quite soon — prosecutors and defense lawyers were hoping to start with a guilty plea by KSM next Tuesday (August 14). But the sentencing phase would not have occurred until next summer. That delay, we are told, was necessitated by one of the plea terms that the Biden–Harris administration hoped would mollify 9/11 family members: The families would be able to submit questions that the jihadists would be required to answer. The idea was to provide a measure of accountability in lieu of a public trial followed by capital punishment.
Putting aside the timing, the point is that a sentencing phase would be required because it would be up to the commission to decide the sentence. There is no provision for the prosecution and defense to agree to a sentence.
In a capital case, commission rules stipulate that a death sentence may be imposed only if all members of the commission assent to it. To impose a sentence of life in prison (or any sentence in excess of ten years of confinement), three-fourths of the commission members must agree. Of course, it bears repeating that, regardless of what (if any) incarceration sentence is imposed, I do not believe the government will ever release the 9/11 jihadists. That is part of the frustration for the country and the families over the proposed (but now rescinded) plea agreement — no one can be very satisfied with a life sentence when we already know that, at a minimum, the terrorists will be in custody, at considerable U.S. taxpayer expense, for life. (In fact, as the New York Times reports, there are three other terrorists held at Gitmo who are in “indefinite law-of-war detention” status because of the danger they’d pose if released — i.e., they have not been charged, they will not be tried, and there is no plan to let them go . . . ever. Again, to repeat my framing of our quandary: What do you do about terrorists who should be put to death but can’t be tried?)
I believe the government is convinced that it would be very difficult to get a unanimous death-penalty verdict, based on both (a) the evidence that the CIA subjected the jihadists to harsh and degrading interrogation methods and confinement conditions; and (b) past experience in cases involving jihadists who also committed heinous offenses and were similarly abused.
“Torture” evidence will feature prominently in any sentencing proceeding (assuming the terrorists are found guilty). It will also be the main challenge for prosecutors if there is a guilt phase of the trial (i.e., if plea agreements are not reached). To be clear, my purpose here is not to reopen the debate over whether what have euphemistically been called “enhanced interrogation techniques” qualify as torture under the demanding legal test that applies. I put the word in quotes to signal that this is in dispute. I continue to believe the tactics used fall short of the legal standard for torture. But that is beside the point for present purposes; the detainees’ treatment was profoundly abusive by any measure, and a trial worthy of the name would not abide the admission of evidence derived thereby.
As I’ve previously detailed, the military judge in the case, Colonel Matthew N. McCall, has been considering evidence of the alleged prisoner abuse and may be poised to suppress vital evidence gleaned from the abusive tactics. When prosecutors told 9/11 family members that a plea agreement without capital sentences was “the best worst option,” they did so mindful of the possibility that, if the case proceeds to trial, it could be lost depending on how the judge rules.
The late senator John McCain — a war hero who, as a naval officer, was brutally tortured in captivity — agitated tirelessly against the harsh treatment of jihadist enemy-combatant detainees in the post-9/11 period. In this, he was not a maverick, at least among those who’ve served in uniform. Military officers — a category that includes the judge and panel in a military commission — have abundant reason to be even more offended than the rest of us by abusive interrogation and confinement of wartime prisoners. Naturally, they worry that if the United States abuses prisoners, our enemies will reciprocate when American personnel are captured. (Obviously, terrorist organizations and rogue regimes will brutalize their prisoners regardless of our commitment to humane treatment; that hardly negates our armed forces’ insistence that we refrain from giving these enemies added incentive to abuse American prisoners and attack American targets. I disagreed with Senator McCain’s contention that captured terrorists who plotted mass-murder attacks should be treated as if they were honorable prisoners of war or criminal defendants; but he was entirely right to worry that abusive treatment, besides being uncivilized, would redound to the detriment of our own troops.)
Unsurprisingly, then, in the commission prosecution of al-Qaeda courier Majid Kahn, who was subjected to abusive interrogation, panel officers imposed the lowest possible sentence. Not content with that, seven of the eight officers fired off a letter to the military authority reviewing the case, seeking clemency for Kahn and describing his post-capture treatment as “a stain on the moral fiber of America.”
More generally speaking, the post-9/11 military commissions have no track record when it comes to capital punishment. Of the nearly 800 alien enemy combatants detained at Gitmo during the last 22 years, only eleven were ever charged with war crimes for trial by commission. Of these, the New York Times reports, only four have been convicted. Not one of them was sentenced to death.
The death penalty also has an unimpressive record in civilian federal terrorism cases. Since 9/11, the only terrorist actually executed after a federal death sentence (imposed by a jury in Denver) has been Oklahoma City bomber Timothy McVeigh — who, unlike most capital convicts, did not fight his execution. A different Denver jury declined to impose a death sentence against Terry Nichols, McVeigh’s coconspirator in the attack that killed 168 people and wounded 680 others. (Similarly, a state jury in Oklahoma could not agree on a death sentence for Nichols.)
A Manhattan federal jury could not agree on capital punishment for Mohamed al-Owhali and Khalfan Khamis Mohamed, al-Qaeda jihadists who killed a combined 224 people in the 1998 bombings of the U.S. embassies in, respectively, Kenya and Tanzania. As often happens, that jury rationalized that life-imprisonment was the more onerous punishment. (It is never explained why, if that is the case, defendants customarily fight capital punishment and often offer to plead guilty and accept life sentences in order to avoid it.)
A federal jury in Boston did impose a death sentence against Dzhokhar Tsarnaev, the Boston Marathon bomber. Yet he will surely not be executed during any foreseeable Democratic administration: The Biden–Harris administration has implemented a moratorium on executions (there are 40 federal prisoners on death row); Harris makes no secret of her opposition to the death penalty; and Dick Durbin of Illinois — the No. 2 Senate Democrat — is now a sponsor of the Federal Death Penalty Abolition Act, which Democrats have long supported and would enact if they won the White House and sufficient congressional majorities.
To repeat my position, the fundamental error is the assumption, mainly stemming from the post-World War II Nuremburg precedent, that constitutional due process mandates a trial of some kind before alien enemy war criminals who are in custody may be executed. (Somehow, in the absence of any courtroom due process, our law also allows the targeted assassination of enemy combatants — including American citizens — who are not in custody.) Constitutionally speaking, I believe Congress could validly enact legislation that would enable the executive branch to conduct executions of captured alien enemy-combatant war criminals with safeguards but without a trial. Let’s face it, though: There is no realistic possibility of such legislation’s even being proposed, let alone adopted — as noted above, the trend is in the opposite direction.
That’s fine, I suppose, but if you’re going to require a trial, it has to be a real trial. In a real trial, the accused has rights, and it is prohibited to admit confession evidence if the accused’s will was overborn by force and intimidation. You can think I’m crazy to believe that, in our bien pensant 21st century, we should execute war criminals without a trial; but if the “trial” you have in mind is a mockery of the concept, then you’re the crazy one. You can’t have it both ways.
In any event, when prosecutors and other government officials contend that the 9/11 plea deal — admissions of guilt but no capital punishment — was the least bad option at this point, it is only after having weighed the odds that death sentences would actually be imposed, as well as the possibility that pursuit of death sentences could result in rulings that would make it difficult even to get convictions.
They determined that it was a very real possibility that the commission would not reach unanimous death verdicts. That is, the pretrial litigation, trial, and sentencing phases would take additional years to complete, yet the result would quite possibly be no better than what a plea agreement would yield right now — guilty verdicts and likely (though not guaranteed) sentences of life-imprisonment, with the jihadists confined until they die regardless of the outcome of the case.
I happen to agree with this assessment. Even if one disagrees with the bottom line, the now-rescinded decision was plainly reasonable.