The U.S. gov­ern­ment has decid­ed to seek the death penal­ty against six Guantánamo detainees who are accused of hav­ing cen­tral roles in the ter­ror­ist attacks of September 11, 2001. The defen­dants will be tried before Military Commissions, which are nei­ther part of the fed­er­al crim­i­nal jus­tice sys­tem nor the mil­i­tary’s jus­tice sys­tem for its own mem­bers. The laws and pro­ce­dures under the Military Commission Act of 2006 have not been test­ed and had to be re-writ­ten after the gov­ern­men­t’s first attempt was found uncon­sti­tu­tion­al. One per­son has been con­vict­ed under the new act fol­low­ing a guilty plea.

Some experts have stat­ed that the tri­als of the detainees will be a his­toric chal­lenge” for pros­e­cu­tors. Eric Freedman, a Hofstra University law pro­fes­sor who has con­sult­ed with the detainees’ lawyers, not­ed that a deci­sion to seek the death penal­ty will draw intense scruti­ny” to the pro­ceed­ings both legal­ly and polit­i­cal­ly from around the world.” Seeking the death penal­ty could also bog down the mil­i­tary court sys­tem, not­ed Tom Fleener, a for­mer mil­i­tary defense lawyer, par­tic­u­lar­ly since there are many unan­swered legal ques­tions such as how to han­dle evi­dence obtained through coer­cive meth­ods. He stat­ed, Neither the sys­tem is ready, nor are the defense attor­neys ready to do a death penal­ty case in Guantánamo Bay, Cuba.”

If the detainees are con­vict­ed and sen­tenced to death, there is an appeals process, though it is not yet clear whether inmates will have access to the writ of habeas cor­pus, one of the fun­da­men­tal ways to chal­lenge a death sen­tence.. There is no death cham­ber at the deten­tion camp in Guantánamo Bay, Cuba, where the detainees are being held. 

Recent inter­na­tion­al war tri­bunals have not allowed use of the death penal­ty, nor do coun­tries like Israel or those in Europe employ cap­i­tal pun­ish­ment when try­ing suspected terrorists.

Citation Guide
Sources

William Glaberson, U.S. Presents Charges Against 6 in Sept. 11 Case, New York Times, February 11, 2008. See Federal Death Penalty-Responses to Terrorism.