What Americans have wanted is justice. That will be denied.
What Americans have wanted is justice. That will be denied.
N R’s Zach Kessel and the New York Post report that the Biden administration has finally pulled the trigger on a plea bargain that will withdraw the death penalty as a potential sentence for Khalid Sheikh Mohammed and at least two other 9/11 plotters in exchange for their guilty pleas to murder and terrorism-conspiracy charges. The pleas would likely result in sentences of life imprisonment.
This, naturally, will enrage much of the country, particularly most members of the 9/11 families’ community who have been waiting for over 20 years for a trial and ultimate accountability for the jihadists. Everybody knows that the terrorists are guilty — they bragged about it to the world. And everybody knows they were never going to be released, regardless of whether a trial eventually happened. What Americans have wanted is justice. That will be denied.
It is no surprise that President Biden did not greenlight the deal until after he scuttled his reelection bid. The question of whether the de facto nominee, Vice President Kamala Harris, will be damaged by the plea bargain may depend on whether her opponent, former president Donald Trump, can explain how he would have handled the matter differently. I’m not holding my breath. Even if that were Trump’s strong suit (it’s not), this is a hard problem and, given where we are, there was almost certainly no avoiding this outcome.
I have warned that this day was coming. (See here, here, and here.) This is the conundrum: What to do about terrorists who should be put to death but can’t be tried?
Nearly two years ago, as pretrial dawdling, bitter litigation over the use of force and intimidation in interrogations (not quite the “torture” it has been called by the media-Democrat complex, but stomach-churning nonetheless), and plea negotiations dragged on, I outlined the likely answer to that question:
Very quietly, President Biden appears poised to answer: We plead them out, taking the death penalty off the table in hopes that a military commission will sentence them to life in prison.
The Biden administration has been edging toward this resolution for a long time. It may be the least bad alternative, but it will be deeply unpopular — infuriating not just most of the families of 9/11 victims but most Americans, period. Consequently, although all that appears necessary to close the deal is a green light from the president (or, knowing Biden, a green light from some subordinate with tacit presidential approval, so that Biden can distance himself from any blowback), the green light won’t be given until after the November 8 midterm elections.
To repeat what I contended back in September [2022], the basic problem here is our assumption that wartime enemies who barbarically mass-murder civilians in utter violation of the laws of war must be given the benefit of an American trial, conducted under due-process standards that, though importantly different in some ways when used in a civilian criminal trial as opposed to a military proceeding (in this instance, a commission authorized by statute), remain similar in both contexts. Much of the intelligence by which we know wartime enemies are guilty is neither admissible under such standards nor, as a practical matter, capable of being introduced without endangering national security (mostly because it would require disclosure of intelligence sources and/or methods that are essential to our defense).
Moreover, even if we put aside the inhumane interrogation methods to which the 9/11 jihadists were subjected, in a trial worthy of the name, confessions are not admissible if they were coerced in any way — i.e., if the defendant was induced to answer by compulsion that overbore his will, even if the compulsion did not amount to torture or inhumane treatment. As a result, to the extent that the prosecution’s case hinges on confessions, those confessions won’t be allowed into evidence at trial, even if we are confident that they were true.
Hence the problem:
The brute facts are that we have five terrorists charged in the 9/11 attacks, with no prospect, after [now 23 years], that the trial will get started anytime soon. Even if the trial were somehow to commence in the next two to three years, there is no guarantee that it could be brought to a successful conclusion. If it did, estimates are that it would take a year, after which the appeals process would start . . . and continue for a few more years. And that presupposes that the terrorists have been convicted and sentenced to death, of which there is no assurance.
Formally, the plea agreement with the three terrorists was struck with the Convening Authority for Military Commissions. The two other terrorists, so far, who are said to have agreed to the same terms as KSM are Walid bin Attash and Mustafa al-Hawsawi. The two other defendants in the commission prosecution pertaining to al-Qaeda’s 9/11 conspiracy are Ammar al-Baluchi and Ramzi bin al-Shibh. The latter was found mentally incompetent to stand trial last year. Whether al-Baluchi will ever be tried remains in doubt.
There will be public anger over other plea terms, which is another reason why they are only dribbling out. Notwithstanding the Lawyer Left’s depiction of Gitmo as the Bush Gulag, the jihadists have been demanding to remain incarcerated there rather than shifted to a maximum-security federal penitentiary. I suspect the Biden administration has agreed to that demand.
Moreover, the administration will not be able to guarantee to the public that the pleading defendants will be sentenced to life imprisonment. In a commission proceeding, it is the panel of military officers (in effect, the jury), that imposes sentence, not the judge. The commission is likely to impose a life sentence in light of the heinousness of the 9/11 atrocities. As I’ve noted in the above columns, however, commissions have been known to impose less severe terms, and to urge clemency for at least one convicted terrorist (al-Qaeda courier Majid Khan), in cases involving forcible and degrading interrogation by CIA officials — which Khan’s panel described as “a stain on the moral fiber of America” in a letter to the reviewing authority for military commissions.
Sentencing for KSM, Attash, and Hawsawi will be scheduled to occur sometime next summer. It should go without saying that it seems inconceivable that any of the five 9/11 terrorists would ever be released, regardless of whether the commission sentences them to life terms.
Which brings us back to the conundrum. If I may repeat what I said back in autumn 2022:
As in most things, Winston Churchill had the right instincts when it came to war-crimes trials for monsters. As World War II raged, he observed that if Hitler fell into London’s hands, there was no doubt that the British government would put him to death. The Führer and his inner circle were among history’s most egregious war criminals. Yet, as the war drew to a close, there was pushback. FDR assessed that Americans would want a trial before death sentences were imposed; and Stalin, of course, was already sold on the value of “trials” that were merely propaganda productions.
Churchill bristled: “The trial will be a farce.” Suddenly, everything that had been crystal clear for years after Nazi atrocities triggered combat operations under the laws of war would become clouded by the vagaries of peacetime due process. The barbarous “defendants” would be presumed innocent. “All sorts of complications ensue as soon as you admit a fair trial,” the prime minister opined. Better to “execute the principal criminals as outlaws.”
It is said that Churchill came to moderate his views as the Nuremburg trials played out. I’ve always believed he had it right the first time.