U.S. Plans Death Camp

May 26, 2003

THE US has floated plans to turn Guantanamo Bay into a death camp, with its own death row and execution chamber.

Prisoners would be tried, convicted and executed without leaving its boundaries, without a jury and without right of appeal, The Mail on Sunday newspaper reported yesterday.

The plans were revealed by Major-General Geoffrey Miller, who is in charge of 680 suspects from 43 countries, including two Australians.

The suspects have been held at Camp Delta on Cuba without charge for 18 months.

General Miller said building a death row was one plan. Another was to have a permanent jail, with possibly an execution chamber.

The Mail on Sunday reported the move is seen as logical by the US, which has been attacked worldwide for breaching the Geneva Convention on prisoners of war since it established the camp at a naval base to hold alleged terrorists from Afghanistan.

But it has horrified human rights groups and lawyers representing detainees.

They see it as the clearest indication America has no intention of falling in line with internationally recognised justice.

The US has already said detainees would be tried by tribunals, without juries or appeals to a higher court. Detainees will be allowed only US lawyers.

British activist Stephen Jakobi, of Fair Trials Abroad, said: "The US is kicking and screaming against any pressure to conform with British or any other kind of international justice."

American law professor Jonathan Turley, who has led US civil rights group protests against the military tribunals planned to hear cases at Guantanamo Bay, said: "It is not surprising the authorities are building a death row because they have said they plan to try capital cases before these tribunals.

"This camp was created to execute people. The administration has no interest in long-term prison sentences for people it regards as hard-core terrorists."

Britain admitted it had been kept in the dark about the plans.

A Downing St spokesman said: "The US Government is well aware of the British Government's position on the death penalty."




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September 11, 2001: A Forum of Information and News, Especially Related to Capital Punishment

General News Articles

Law Review Articles

Zacarias Moussaoui Case

International News

Principal Treaties

General News Articles

Guantanamo Detainees:

A look at the Guantanamo military commission
By The Associated Press – May 4, 2012

Here is a look at the military commission system that will be used to prosecute five Guantanamo Bay prisoners charged in the Sept. 11 attacks:

WHAT IT IS: A military commission is a form of military tribunal convened to try people accused of unlawful conduct associated with war. They were commonly used for the first time during the 19th century Mexican-American War and have been modified over time by Congress and U.S. Supreme Court precedents. President George W. Bush and Congress authorized a military commission to try prisoners accused of terrorism and war crimes and held as prisoners at the U.S. Navy base in Guantanamo Bay, Cuba. President Barack Obama and Congress convened a new military commission, with several reforms aimed at addressing concerns of human rights groups and others, in October 2009.

HOW IT WORKS: A military commission trial is similar to a court martial in that the jurors are military officers, as is the judge. Many of the principles are the same as in both a U.S. civilian or military court: Defendants are innocent until proven guilty; the prosecution has the burden of proof; guilt must be proved beyond a reasonable doubt. As in a court martial, a conviction requires agreement by 2/3 of the jurors instead of the unanimous agreement required for a jury in civilian court. A military jury must be unanimous to impose a death sentence.

WHO HAS BEEN CONVICTED SO FAR: The Guantanamo commissions under Presidents Bush and Obama have resulted in seven convictions, two at trial and five through plea bargains.

WHY HUMAN RIGHTS GROUPS DON'T LIKE IT: Obama and Congress adopted several reforms in October 2009, including a prohibition on statements obtained by torture or cruel, inhuman or degrading treatment. But critics say the reforms don't go far enough, that the prosecution can still use statements and evidence from witnesses tainted by harsh treatment. Opponents of the military commissions also say that rules governing secrecy and the use of some forms of hearsay evidence will allow the U.S. to avoid a full accounting of the treatment of prisoners such as Khalid Sheikh Mohammed at secret CIA detention sites.

WHAT COULD HAPPEN: Mohammed and his four co-defendants all face charges that include murder, conspiracy and terrorism and could get the death penalty if convicted. They are scheduled to be arraigned Saturday but are not expected to enter pleas and the trial itself is likely at least a year away.

Summary on Guantanamo, Miami Herald, July 17, 2011:

"6 Guantánamo captives have been tried by military commission since the Pentagon began moving men and boys there in January 2002. None faced death penalty charges.

4 pleaded guilty in exchange for short sentences:

• So-called Australian Taliban David Hicks pleaded guilty in 2007 to providing material support for terror as a Taliban foot soldier. He was repatriated that same year.

• Sudanese-born al Qaeda cook Ibrahim al Qosi pleaded guilty in July 2010 to providing material support terror and conspiracy. He is slated for release in 2012.

• Canadian Omar Khadr pleaded guilty in October to conspiring with al Qaeda, murdering a U.S. soldier at age 15 by throwing a grenade in a firefight, spying and providing material support for terror. He is slated for return to Canada by November to serve out at most 6 more years in jail.

• Sudanese-born paramilitary camp trainer Noor Mohammed pleaded guilty in February to conspiring with al Qaeda in Afghanistan in the ’90s. Under the plea bargain, he could be released in 2014 in exchange for testimony at future trials.

2 were convicted at trials:

• Yemeni Salim Hamdan of Yemen was convicted in August 2008 of providing material support for terror for working as Osama bin Laden’s driver in Afghanistan, but cleared of a conspiracy charge. He was sent home the same year.

• Bin Laden’s media secretary, Ali Hamza al Bahlul of Yemen, was found guilty in November 2008 of providing material support for terror and conspiracy after offering no defense. He is serving life at Guantánamo."

(Miami Herald, July 17, 2011)

Earlier Proposal for Federal Trials

U.S. Attorney General Eric Holder had announced that five men being held in Guantanamo prison in connection with the September 11, 2001 attack on the World Trade Center will face trial in federal court in New York City: Khalid Shaikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Mustafa Ahmed al-Hawsawi and Ramzi bin al-Shibh.  These defendants could face the federal death penalty.  (C. Savage, "U.S. To Try Avowed 9/11 Mastermind Before Civilian Court in New York," New York Times, November 14, 2009.) 

However, in 2011, Holder announced that these detainees would be tried before military commissions in Guantanamo, rather than under the federal death penalty.

Five other detainees held in connection with other acts of terrorism will face trials before military commissions: Abd al-Rahim al-Nashiri, Ahmed Mohammed Ahmed Haza al-Darbi, Ibrahim Ahmed Mahmoud al-Qosi, Oma Ahmed Khadr, and Noor Uthman Muhammed.

See also:

"Defense Lawyers in 9/11 Case Face Huge Hurdles" by Daphne Eviatar, Huffington Post, August 21, 2013

Empty Chairs” by Daphne Eviatar, The American Lawyer, April 1, 2008 (difficulty in finding qualified counsel and other due process problems in Military Commission capital trials) (subscription required to view)

"Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives?" by Michael Dorf for FindLaw's Write on February 13, 2008

"The Military Commissions Act of 2006" This two-part series explains and critques the Military Commissions Act of 2006 (FindLaw, October 9, 2006).

"US Plans Death Camp" - This article reveals that the U.S. has possible plans to turn Guantanamo Bay into a death camp, with its own death row and execution chamber. (Courier-Mail, May 26, 2003).

"Government Sets Rules for Military on War Tribunals" - This New York Times article explains the rules set by the Bush administration for conducting military tribunals. See also, "Rules for Military Tribunals" a chart comparing the some of the rules for military tribunals for terrorism suspects with courts-martial and civilian courts.

Administration May Be Willing to Forgo Death Penalty in Extradition Cases - U.S officials have indicated that, in order to gain custody of suspected terrorists in Europe, they maybe willing to make concessions on both the death penalty and the use of military tribunals. Currently, England, Italy, and Spain hold suspected terrorists, but are among the over 40 nations that have signed the European Convention on Human Rights, which condemns the use of the death penalty and possibly the use of military tribunals. Spain has already said that it will not extradite the eight suspected terrorists in its custody without assurances that the death penalty will not be sought (see below). In the past, the U.S. has given such guarantees as a condition of extradition. (Associated Press, 12/1/01). See also, international death penalty.

"No return to execution - The US death penalty as a barrier to extradition" - This new report by Amnesty International examines the practice of foreign governments which refuse to extradite suspects to the U.S. without first obtaining assurances that the death penalty will not be sought or imposed. (Amnesty International, AMR 51/171/2001)

Federal Legislation Related to the Attack of September 11, 2001 - View Congress's Web site featuring Bills & Joint Resolutions signed into law, approved resolutions, legislation with floor action, and legislation without floor action.

On November 13th, President Bush signed a military order authorizing the Secretary of Defense to detain and prosecute, by military commissions, non-U.S. citizens who are or were members of al Qaeda and who have engaged in, aided or abetted, or conspired to commit acts of international terrorism. These military commissions would be empowered to render sentences extending to life imprisonment or death upon conviction. Read the "MILITARY ORDER: Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism" (11/13/01)

The Terrorist Bombings Convention Implementation Act of 2001 - Title I of the Act authorizes the imposition of the death penalty for the offenses set forth in Section 102 of the bill. While the proposed legislation was in the House Judiciary Committee, Congressman William D. Delahunt of Massachusetts offered an amendment to delete the language providing for the death penalty. The amendment, however, was not incorporated. Read Congressman Delahunt's statements regarding the amendment.

Zacarias Moussaoui Case

Read "Terrorism Trial's Strategies Revealed," Washington Post, Nov. 14, 2005, regarding the penalty phase of Moussaoui's capital trial.

Read the United States' "Notice of Intent ot Seek a Sentence of Death" for suspected terrorist Zacarias Moussaoui, filed in the U.S. District court for the Eastern District of Virginia in March 2002. Read the 6 count indictment against Moussaoui, filed in in December 2001.

Federal Jury Gives Moussaoui Life in Prison Without Parole - A federal jury voted today that Zacarias Moussaoui should serve a sentence of life in prison without parole despite the government's assertion that his lies to FBI officials contributed to the terrorist attacks of September 11, 2001. Earlier the jury had found that Moussaoui was responsible for some of the deaths that took place on September 11, and that he was eligible for the death penalty. After weeks of testimony during the sentencing phase of the trial, the jury took 7 days to recommend a sentence of life without parole. In their verdict, the jury unanimously agreed that Moussaoui "knowingly created a grave risk of death" for more than the intended victims of September 11th, and that he committed his acts with "substantial planning," two of the aggravating factors listed in the death penalty statute.

Moussaoui's defense team, with whom he did not cooperate, argued that he is a delusional schizophrenic. They maintained that Moussaoui took the witness stand to confess his role in the September 11 attacks because he wanted to achieve martyrdom through execution. During the sentencing phase, jurors heard testimony from victims' family members, some of whom supported and some who opposed the death penalty for Moussaoui, from mental health experts, and others who were directly impacted by the events of 9/11.

Following the verdict, Terry Rockefeller, whose sister was killed in the World Trade Center attacks, noted, "Had the jury sentenced Zacarias Moussaoui to death we would have turned a man with long-term mental health problems, whose direct responsibility for the 9/11 attacks are tenuous, into a martyr. Evidence introduced during the trial cast significant doubt on Moussaoui’s importance within al Qaeda. . . . [M]ost fundamentally, I oppose the death penalty because I do not want to be the citizen of a state that kills. I do not want to be a party to more violence and killing."

The attacks took the lives of nearly 3,000 people and were the deadliest terrorist attack in U.S. history. The Alexandria courthouse where the trial was held is just miles away from the Pentagon, where one of the 9/11 attacks occured. Federal judge Leonie Brinkema is expected to impose the life sentence on Thursday, May 4. (CNN & Associated Press, May 3, 2006, and Statement issued by Terry Rockefeller, May 3, 2006). Read the Jury's Verdict Form. See Federal Death Penalty and Arbitrariness.

  • NEW VOICES: Senior Counsel to 9/11 Commission Questions Death Penalty for Moussaoui - In a recent New York Times op-ed, John Farmer, senior counsel to the 9/11 commission and a former New Jersery attorney general, states that seeking the death penalty for Zacarias Moussaoui detracts from U.S. efforts to seek justice against senior Al Qaeda officials who plotted and carried out the 9/11 attacks. Farmer claims Moussauoi, who was in jail as terrorists plotted and carried out the events of 9/11, was not the "20th hijacker" and is a "poor stand in" for more senior level Al Qaeda leaders who are also in U.S. custody:

Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life — important — has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

Neither claim will be justified. . . .

Zacarias Moussaoui is evil, and there is no doubt that he arrived here determined to kill Americans, but he was not a leader of Al Qaeda. He was not even, as initially reported, the "20th hijacker." He was not in contact with the 9/11 hijackers in the United States. His apprehension in late August 2001 did nothing to disrupt the plot's timing. He sat in jail while the attacks unfolded.

Based on his conduct, he should sit in jail some more. Six floors underground, with one hour outside his cell per week. For, oh, 50 more years or so. He should die there, frustrated and forgotten, embittered and anonymous. This could have been achieved without the catharsis of the penalty hearing. (New York Times, April 11, 2006). See Federal Death Penalty.

  • NEW VOICES: Mother of September 11 Victim Opposes Death Penalty for Moussaoui - Alice Hoagland's son, Mark Bingham (pictured), was killed on September 11 as he joined with fellow United Airlines passengers to ground a plane that may have been headed toward the White House. Hoagland is urging a life sentence for Zacarias Moussaoui, who faces the death penalty for his role in the terrorist events of that day. In an interview with The Advocate, Hoagland noted that sparing Moussaoui's life would honor "a reverence for all life" and that it would prevent some from viewing him as a martyr. Hoagland, a former flight attendant who is now active in transportation safety issues, stated:
We Americans have the opportunity to keep him from becoming glorified as a martyr. . . . Al Qaida, other fundamentalist Muslim groups - even mainstream Muslims - would be tempted to view Moussaoui's death as a martyrdom. This man does not deserve that honor.
. . .
We Americans have the opportunity to demonstrate our compassion toward a man who has shown no compassion for America. We are a nation of laws, of justice, and of mercy. By sparing his life, we can demonstrate our humanity by acknowledging the humanity of a human being who badly needs compassion. By sparing his life, we will have overcome the sort of hatred that he displays toward us.
. . .
It is difficult to imagine a more despicable human than Zacarias Moussaoui has shown himself to be. But he, like all of us, is a bundle of traits and attitudes. His lower self has dictated his present low behavior. I hope we as a nation can demonstrate our higher impulses by sparing his life - while keeping him safely behind bars for the remainder of his life. If we can do that, we will honor our own high standard of reverence for all life, and we will model a better standard of behavior for Zacarias Moussaoui to take to heart. (, April 8, 2006. Hoagland's comments will appear in the May 9, 2006, edition of The Advocate (Calif.)). See New Voices, Victims, and Federal Death Penalty.

International News

  • Germany Hesitates to Supply Evidence that Would Aid in Prosecution of Moussaoui - German authorities are reluctant to turn over evidence in their possession that could demonstrate a relationship between suspected terrorist Zacarious Moussaoui and the perpetrators of the September 11th attacks on the U.S. Moussaoui is charged with 6 counts of conspiracy in connection to the attacks and faces the death penalty if convicted. German officials, who do not want to contribute to the case as long as it could potentially result in the execution of Moussaoui, are currently negotiating with American officials in an attempt to find a satisfactory compromise. (Washington Post, 6/11/02)
  • British Authorities Oppose Capital Punishment for Detainees - Chris Patten, the European Commissioner for External Affairs, said that it was inconceivable that the three British citizens being held at the U.S. naval base at Guantanamo Bay could be subject to capital punishment after being tried in a military tribunal. "I just think that would be a way of losing international support and losing the moral high ground that the international coalition has," said Patten.
    Foreign Office Minister Ben Bradshaw added: "The British Government regularly, in cases where the death penalty may be imposed on British citizens, makes our views on the death penalty very plain to the American authorities. We are opposed to the death penalty." (BBC News, 1/22/02)
  • Spain Will Refuse to Extradite Terrorists If U.S. Seeks Death Penalty - A Spanish Foreign Ministry spokesman said that Spain will not extradite terrorist suspects to the U.S. without assurances that they will not be subject to capital punishment. The spokesman cited European Union agreements that prevent members from extraditing suspects to countries where judicial norms are seen as falling below those in the Union. (Associated Press, 11/23/01)
  • U.S. Differences with Europe on Death Penalty Could Impede Progress on Terrorism - The U.S. may have to agree that it will not pursue the death penalty against suspected terrorists in order to have them extradited from Europe. In the next few weeks, European Union leaders will meet with U.S. officials to decide on extradition procedures for those suspected of the U.S. terrorist attacks on September 11. In the past, European countries, which oppose capital punishment, have refused to extradite criminals to the U.S. unless U.S. officials stipulate that the death penalty will not be sought. Several European Union ministers have asked for a new comprehensive agreement that would address the issue of capital punishment. (USA Today, 10/3/01) See also, International Death Penalty.


Principal Treaties

International Covenant on Civil and Political Rights
The U.S. ratified the treaty.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The U.S. ratified the treaty in 1994.

International Convention on the Rights of the Child
The U.S. has signed but not ratified this document.

Vienna Convention on Consular Relations
The U.S. ratified the Vienna Convention in 1969.

Law Review Articles

Ostrom, Brian J., et at. "The Prosecution and Punishment of Intentional Terrorists in Federal Courts: 1980-1998" 3 Criminology and Public Policy 311 (2002).

Donohue, Laura K.,"Bias, National Security and Military Tribunals" (reaction essay) 3 Criminology and Public Policy 339 (2002).

Turk, Austin T., "Confronting Enemies Foreign and Domestic: An American Dilemma?" (reaction essay) 3 Criminology and Public Policy 345 (2002).

Symposium, "Capital Punishment in the Age of Terrorism" 41 The Catholic Lawyer 187 (2001). The text from a symposium sponsored by the Association of the Bar of the City of New York features leading death penalty experts closely examining how governments respond to national crimes, such as the terrorist attacks on the World Trade Center and the Pentagon, that trigger factors that are not present in ordinary first-degree murder cases.

See also Federal Death Penalty

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CMFE's letter to President Bush urging an immediate moratorium on all federal executions Citizens for a Moratorium On Federal Executions
Citizens for a Moratorium On Federal Executions, a Washington-based group of prominent death penalty opponents, sent President Bush a letter on June 4, 2001 urging him to impose an immediate moratorium on all federal executions.

Here is the full text of the letter:

Dear President Bush:

As you know from our previous correspondence to you and to President Clinton, Citizens for a Moratorium on Federal Executions (CMFE) is a growing coalition of individuals with differing views on the authority of government to impose the death penalty. Some who have signed letters to you and to President Clinton agree that capital punishment is appropriate in principle, provided that it can be carried out fairly, equitably and reliably. However, all of us agree that current information about the administration of the federal death penalty calls for an immediate executive moratorium on federal executions.

Citizens for a Moratorium on Federal Executions originally came together to urge President Clinton to declare a moratorium when Juan Raul Garza was scheduled to be the first individual executed by the federal government system since 1963. Results of the Department of Justice survey of the administration of the federal death penalty released in September of last year revealed disturbing evidence of geographic and racial disparities. The outcome of the DOJ review and concerns expressed by the former Attorney General and the former Deputy Attorney General were focal points of the CMFE's letters to President Clinton in November and January. In those letters, we urged that "no federal execution should be carried out at a time when the nation questions the reliability and fairness of capital punishment and no person should be executed until it is certain that the process does not discriminate. The very reason for a moratorium is to allow a period for careful study about the administration of the federal death penalty. Whatever one's views on the appropriateness of the death penalty, it is unconscionable to carry it out while questions remain about the fairness of its application."

On December 7, 2000, President Clinton announced that he had granted a reprieve to Mr. Garza because of his conclusion that "the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study." The President called upon the Department of Justice to conclude a further examination of the federal death penalty system by the end of April of this year in advance of June 19, the execution date now scheduled for Juan Raul Garza. Then-Deputy Attorney General Holder followed up by expanding the internal Department of Justice inquiry to include gathering internal data that had been missing from the September 2000 survey.

Ultimately, Attorney General Reno, Deputy Attorney General Holder, and Acting Director of the National Institute of Justice Julie Samuels concluded that April of this year was not a realistic deadline for completion of a thorough examination of the system. The Department determined that a credible evaluation of the federal death penalty could not be conducted without studies by independent experts. It recognized that a reliable study required that data be collected and analyzed that had not been maintained by the United States Attorneys in the 94 federal districts. The Department authorized the National Institute of Justice to commence this process. In January, representatives of the NIJ met with experts to begin discussions essential to designing and carrying out independent studies.

Your Administration's early statements and actions indicated its concurrence with this course of action. Responding to questions during the confirmation process, the nation's new Attorney General, John Ashcroft, stated that evidence of racial disparities in the application of the federal death penalty "troubles me deeply." Acknowledging that he was "unsure" why more than half the federal capital prosecutions were initiated in less than one-third of the states, the Attorney General agreed that he was also "troubled" by this evidence. He expressed his approval of a "thorough study of the system," and also stated, "Nor should race play any role in determining whether someone is subject to capital punishment." While declaring that he "personally" did not believe a moratorium on federal executions was warranted, the Attorney General answered with an unequivocal "yes" when asked: "Do you agree with President Clinton that there is a need for 'continuing study' of 'possible racial and regional bias' because '[i]n this area there is no room for error?'"

Unfortunately, the Attorney General's more recent actions and statements cast doubt on your Administration's commitment to the principles he set forth at his confirmation hearing. There has been no indication that the Department intends to continue the necessary independent investigation of racial and geographic bias in the death penalty, which was to have been administered by the National Institute of Justice. Moreover, Attorney General Ashcroft's statements to members of Congress, including his testimony before the House Appropriations Committee in early May, suggest that even the internal inquiry that the Department of Justice embarked upon will consist of little more than a re-analysis of the same data already examined and found to demonstrate "troubling" racial and geographic disparities. While Attorney General Ashcroft and Department of Justice press advisories indicated that the supplemental study would be made public before May 16, it was not. This sequence of events is far from the "thorough study of the system" that the Attorney General promised.

Finally, revelations just days before May 16 that the FBI had failed to provide defense counsel for Timothy McVeigh with thousands of documents to which they were entitled have further shaken confidence in the reliability and fairness of the administration of the federal death penalty. In announcing a delay in Mr. McVeigh's execution, the Attorney General declared that "if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity." In expressing your support for the Attorney General's decision, Mr. President, you stated that '[t]oday is an example of the system being fair." You emphasized that the Attorney General's action was appropriate because "we live in a country that protects certain rights."

Mr. President, the doubts and questions that were raised about the fairness and reliability of the federal death penalty system remain. In your own words, they call into question precisely whether the "system [is] fair" and whether "we live in a country that protects certain rights." We await action by this Administration which will assure the American public that if we are to have a federal death penalty, reliability, fairness and equality will be guaranteed. Those assurances cannot be given today because, as Attorney General Ashcroft has recognized, there is need for a "thorough study." We again urge you to declare an immediate moratorium on all federal executions.


Barbara Arnwine
Executive Director, Lawyers' Committee for Civil Rights Under Law

Bishop Thomas J. Gumbleton
Auxiliary Bishop, Archdiocese of Detroit

Elizabeth Frawley Bagley
Former U.S. Ambassador to Portugal

Wade Henderson
Executive Director, Leadership Conference on Civil Rights (LCCR)

Dr. Mary Frances Berry
Chair, U.S. Commission on Civil Rights

Reverend Jesse Jackson
Civic and Political Leader; President and Founder, Rainbow Coalition/PUSH

Harry Belafonte

Fred Korematsu
Japanese American Civil Rights Leader

Julian Bond
Chairman of the Board, National Association for the Advancement of Colored People (NAACP)

Dean Anthony Kronman
Dean, Yale Law School

Kerry Kennedy Cuomo
Human Rights Activist; Founder and Former Executive Director, RFK Center for Human Rights

Reverend James Lawson, Jr.
Pastor Emeritus, Holman United Methodist Church, Los Angeles

Norman Lear
Director and Founding Member, People for the American Way; Chairman, ACT III Communications

Michael S. Rosier
President-Elect, National Bar Association

Robert S. Litt
Former Principal Associate Deputy Attorney General, U.S. Department of Justice

Dr. Yvonne Scruggs-Leftwich
Executive Director/Chief Operating Officer, Black Leadership Forum, Inc.

Reverend Dr. Joseph E. Lowery
Co-Founder and President Emeritus, Southern Christian Leadership Conference (SCLC)

Stanley Sheinbaum
Economist; Founding Publisher, New Perspectives Quarterly

Cardinal Roger Mahony
Archbishop, Roman Catholic Archdiocese of Los Angeles

Sidney Sheinberg
Former President and Chief Operating Officer, MCA, Inc./Universal Pictures

Karen K. Narasaki
President, National Asian Pacific American Legal Consortium

Senator Paul Simon
U. S. Senate, 1984-1997;U.S. House of Representatives, 1974-1984

Mario G. Obledo
President, National Coalition of Hispanic Organizations

Tavis Smiley
Commentator, Author, Civil Rights Leader

Angela E. Oh
Member, Advisory Board One America:The President's Initiative on Race

R. Emmett Tyrrell, Jr.
Editor in Chief, The American Spectator

George M. Ong
National President, Organization of Chinese Americans

John Van de Kamp
California Attorney General, 1983-1991

Sister Helen Prejean
Author, Dead Man Walking; Chair, The Moratorium Campaign

Reverend C.T. Vivian
Founder and Board Chair, Center for Democratic Renewal (formerly the National Anti-Klan
Network); President, Black Action Strategies and Information Center (B.A.S.I.C.)

Hugh B. Price
President, National Urban League

Bud Welch
Board Member, Murder Victims' Families For Reconciliation

Arturo S. Rodriguez
President, United Farm Workers of America, AFL-CIO

John W. Whitehead
Founder and President, The Rutherford Institute

cc: John D. Ashcroft, Attorney General
Alberto Gonzalez, White House Counsel

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Life, Death and Uncertainty Life, death and uncertainty THE BOSTON GLOBE July 8, 2001

Life, death and uncertainty


To the judge in charge, the murder trial of Kristen Gilbert offered an unsettling lesson - and inescapable conclusion - about the ultimate cost of the death penalty

Federal judges are not allowed to offer opinions, at least not in any significant way, on cases or issues that were, are, or might be before them. That is as it should be.

But an excessive reluctance to say anything about the legal process, even once a case is over, can deprive the public of important information, and produce a suffocating silence about conditions at the front lines of our justice system.

Lawyers do sometimes comment, of course, but they are combatants, foot soldiers with their own biases and limitations. Legislators and appellate courts make their pronouncements far from the blood and shrapnel of the trenches. Judges are often positioned to see what others cannot, and sometimes what they see is important.

Consider what follows a somewhat mud-spattered dispatch from an advantageous hilltop - the bench -not about who was right or wrong, but about how one particularly fateful campaign for justice unfolded.'

The trial was United States v. Kristin Gilbert. Presiding over this, the 1st death penalty case in Massachusetts in several decades, was the most complicated and stressful thing I've ever done (aside, perhaps, from raising teenagers).

The experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people - not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.

In saying this, I take no position on the death penalty per se. Our Constitution gives Congress the duty to weigh the costs and benefits of particular statutes, and I apply them as enacted. Should another capital case come my way, I will again preside, and perhaps find myself with the duty to order a defendant put to death. I accept this.

Nor does my conclusion about the inevitable fallibility of this system mean that I believe the jurors in the Gilbert case erred either in finding the defendant guilty or in declining to impose the death penalty. I have no reason to think they did.

But the issue is not whether the Gilbert jurors got it right, or even whether the next 10, or 20, or 100 capital cases will go off without error. Eventually, in some courtroom somewhere, someone will get it wrong; the process is both too human and too complex to expect otherwise. And for some innocent defendant, that slip will be fatal. For all we know, it may already have happened.

For those in the courtroom who decide the accused's fate - life or death -there is also a price to pay, but of a different and, of course, far lesser sort.

Kristin Gilbert, a 30-year-old nurse, was indicted in 1998 for murdering four of her patients and attempting to murder three others by injecting them with the heart stimulant epinephrine. Since she allegedly committed these crimes at a Veterans Affairs Medical Center, the federal death penalty statute applied. The fact that Massachusetts has no death penalty did not matter.

The method of execution proposed, like the defendant's modus operandi, was lethal injection.
The 7 alleged victims were mainly elderly veterans with various ailments, men much loved by their families. The government's theory was never that these were mercy killings; only 1 of the 7 victims appeared to have been in immediate danger, or even in acute distress.

The facts charged were more lurid. Gilbert, the prosecutors said, injected her victims in order to trigger a "code," i.e., a medical emergency at which she could meet a security guard with whom she was having an adulterous affair. She was, in the words of the prosecutor, a "code bug" the way an arsonist is a "fire bug."

If given clear proof beyond all possible doubt that someone committed despicable acts like these, few people would grieve if the murderer happened to be struck by a bolt of lightning, or suddenly died from, say, an undiagnosed heart condition. But trials seldom offer the luxury of absolute proof to a mathematical certainty - and when no smoking gun evidence exists, and when the mechanism for taking life is entirely in human hands, the task for jurors is complicated.

The defense argued that the government could not even prove that the veterans had died of foul play. Gilbert's medical experts - well- respected clinicians with excellent credentials -testified that all 7 may very well have suffered unexpected cardiac arrhythmias from perfectly natural or explainable causes. Even with considerable circumstantial evidence, including Gilbert's own apparently inculpatory statements, but no eyewitness testimony, the trial presented in large part a classic battle of experts.

The unpredictability of the courtroom was highlighted by the partial collapse of the government's toxicological case mid-trial. In his opening, the prosecutor promised that the jury would hear a nationally- renowned expert opine that post-mortem examination clearly revealed epinephrine poisoning. Halfway through the trial, he had to admit that on reexamination the results were inconclusive. His renowned expert, it seemed, had made a math error.

In crude summary, those are the pertinent facts of the case. Here is the personal backdrop:

As the trial date approached, a colleague from another court called to caution me about the level of stress I would be facing. He had had his own death penalty trial and had suffered a heart attack shortly afterward. It was a valuable warning.

After 17 years on the bench I do not consider myself particularly squeamish. I have had some tough cases: a drive-by shooting of a 12-year-old boy, a sale of heroin resulting in the customer's death, gang cases, gun cases, drug conspiracies. And although I do not say it with any pride, I have imposed many a horrendous sentence, gone home, eaten dinner, watched the Red Sox, helped with the homework, and slept soundly. You do your best, and you go on to the next case.

The Gilbert trial was different. Everyone had to devote a fair amount of attention just to staying healthy and reasonably rested. At a preliminary hearing, I ordered all counsel, only half humorously, to get at least 20 minutes of aerobic exercise four times a week, then followed my own order.

A few days before trial I started having bad dreams, always featuring me either in the role of the executioner or the prisoner facing execution. Time and again, I found myself walking down a hall, breathless with terror at the imminence of death, with the shadows of the guards gliding alongside me. The executioner, a kindly looking, vaguely recognizable man, gazed at me, partly concealing the ax in the folds of his long black robe.

Jurors told reporters afterward that they had had their own nightmares. As the trial progressed, I got used to these dreams, and perhaps the jurors did too. Eventually the dreams ceased being frightening, and then stopped. I never thought I would preside over a death penalty case; most federal judges do not. It is unsettling to experience how quickly the unthinkable can become commonplace, then fade into part of a day's work. You get used to it.

My reaction to the stress became almost embarrassing during jury selection. As potential jurors arrived for individual questioning in small groups, I would instruct them as follows:

"You must understand, if the jury were unanimously to find that the death penalty should be imposed upon Ms. Gilbert," and here I nodded in her direction, "I would be required as the judge to sentence her to death. In other words, I could not change the jury's decision."

The jurors' rapt faces at this point always seemed to reflect their sense of the staggering responsibility they might have. Each time, you could hear a pin drop in the courtroom.

The sheer effort of getting that passage out of my mouth affected me in a startling and ludicrous way. For four or 5 days, for the first and only time in my life, my grip on the word "decision" (a rather significant word for a judge) slipped badly. No matter how sturdily I braced myself as I sensed the word approaching, it started toppling out drunkenly as "desisson," "deshishon," or, most often, "deshizzon" - as in, ''I could not change the jury's deshizzon." It was horrible. But, again, this passed, and by the end of the 1st week the unspeakable had become speakable - just
ordinary words.

Apart from stress, the case presented almost endless logistical challenges, beginning long before trial actually commenced.

For example, a death penalty case requires the appointment of at least 2 defense attorneys, one of whom is "death qualified," i.e., experienced in at least one prior capital case, and the assembly of a team of necessary defense experts. The shortage of qualified counsel in a state like Massachusetts with no death penalty, and the limitation on the hourly fee that can be paid ($125 per hour, a fraction of what prominent lawyers receive) made this task daunting.

Ultimately, three outstanding lawyers agreed, essentially, to abandon the rest of their practices (and to a great extent their personal lives) for about a year to prepare and then try the case.

The experts appointed to assist the defense team included, at various times, 3 investigators, 2 toxicologists, a pathologist, 2 cardiologists, a nursing consultant, a jury consultant, a venue analyst, 2 mitigation specialists (experts commonly used in capital cases to gather evidence for the penalty phase), a statistician, a neuropsychologist, a behavioral psychologist, a psychiatrist, an endocrinologist, and a paralegal.

In the end I was confident that the defendant's team reasonably balanced the government's, so that the outcome would emerge from the merits, not from imbalance in firepower. To assure this, defense lawyers' fees and experts' costs eventually came to over $1.6 million, all paid from public monies.

In the months before trial, legal and logistical challenges continued to multiply. By my courtroom deputy's count, more than 250 motions were filed before and during the trial, some requiring many hours of hearings. The government took three of my rulings to the Court of Appeals; except for a minor point, I was affirmed.

Some 1,500 jury summonses were sent out, and on Oct. 16, 2000, potential jurors - 800 of them - assembled at Springfield's Symphony Hall (rented because no room in our courthouse was large enough) to hear preliminary instructions and fill out a 15-page questionnaire.

Then, for four weeks, hundreds of jurors came to court for follow-up questions. In the end, 12 jurors and six alternates (two alternates were eventually excused) would sit from Nov. 20, 2000, to March 26, 2001, receiving at first $40, then $50 per day plus 34 cents per mile for travel. The jurors' service was the most unparalleled demonstration of civic responsibility I have ever witnessed. How many of us could, or would, do it?

In the week before the trial, deputy marshals brought in from around the country arrived to assist our local deputies and court security officers. A pressroom and a portion of the courtroom were set aside for the media. (The coverage, while generally balanced and accurate, was intense, particularly in the local media.)

Throughout the 1st and larger portion of the trial, the guilt phase, both the government and defense took advantage of the extensive electronic resources in my courtroom. Video monitors and computer hookups allowed counsel to present evidence via a document presenter, CD-ROM, or a videotape.

This equipment, still rare in most courtrooms, made presentation of medical records, all of which had been electronically scanned, enormously easier. Direct testimony of the government's lead cardiologist unfolded with multicolored, animated diagrams of the heart, a tour de force presentation of expert testimony.

The doctor, who testified for 5 days, was just one of roughly 70 witnesses. Over 200 exhibits were received into evidence, many of them medical records running to several hundred pages. The jury confronted concepts such as "accelerated ideo-ventricular rhythm," "right bundle branch blockage," and "contraction band necrosis." Unlike many judges, I allowed the jurors to take notes.

Given the technical nature of the testimony, some may have worried that none of the 12 jurors had a four-year college degree, though several had some college and three had worked in a medical area. In my own experience, formal education does not necessarily make for a better juror.

The trial, which began as the leaves were falling, marched on through the end-of-the-year holidays. There were three snow days, 4 sick days, and 3 medical emergency days; the defendant and 2 of the jurors got the flu, and 1 of the defense lawyers was briefly hospitalized with chest pains.

Then, on Feb. 21, evidence in the guilt phase concluded and the jury began its 1st-stage deliberations. The 12 days of deliberations were the longest by far I have ever waited through. Finally, the jury, looking utterly exhausted, returned its verdict: guilty on 3 counts of 1st-degree murder, and on several lesser charges.

Now the question was, would the jurors vote to sentence Kristin Gilbert to death?

The final, so-called penalty phase of the trial came down to a presentation by the government of aggravating factors and by the defense of mitigating factors. The jury was to weigh these in determining the sentence.

That may sound straightforward, but this portion of the trial was so strange - so unlike any legal proceeding I have ever been a part of - that it is hard to describe.

In a typical criminal trial, including the guilt phase of a capital trial, the rules are clear and strict. But in the penalty phase of a death penalty trial, most of these rules are considerably looser. Both sides are given rather broad latitude to offer evidence about the defendant's background or character, or the nature of the crimes or their impact, that might affect the jury's decision.

What's more, the time-honored "beyond a reasonable doubt" standard does not apply; each juror is to decide whether death is - as the statute puts it - "justified," a term not defined in the statute or, as far as I know, anywhere else. With so few of the usual controls at hand, presiding over the penalty phase of a capital trial, from the judge's point of view, is like chuting the Colorado River on a tea tray.

It did not help that the journey was powered by the force of strong emotion. Probably the most dramatic evidence of an aggravating factor came from family members of the victims. Bravely, and occasionally tearfully, they took the stand one by one to show pictures of their sons, fathers, and brothers, and to speak, , sometimes in language that verged on poetry, of the enormity of their losses.

Never before have I understood so poignantly the devastating impact of a murder. It is hard to lose a loved one, harder to have had no opportunity to prepare for the loss, harder still to know that due to accident or mistake the loss was avoidable. But hardest of all - on a whole other level - is to perceive that the loss came through the deliberate viciousness of another person.

The victim family members delivered their testimony from a witness box no more than 10 or 12 feet from the defendant, passing by her as they walked to the stand almost close enough to touch, under the alert eyes of the deputy marshals.

Probably the most dramatic evidence of a mitigating factor came, in turn, from family members of the defendant. Gilbert's father took the stand, showing pictures of his daughter as an infant, toddler, girl, and young mother. Both the defendant's grandmothers tottered to the stand, recalling cookie baking and quilt making, describing the terrible impact Gilbert's death would have on them. As they spoke, Gilbert, just a few feet away, sobbed. Gilbert's former husband, who had appeared for the government during the guilt phase, submitted a statement now for the defense, expressing his deep concern about the injury his sons would suffer if their mother were executed.

The words of these witnesses were so profound that they almost became "testimony" in a religious sense. How does a judge modulate the impact of these voices fairly, and respectfully, knowing that they may determine whether someone lives or dies?

In the end, the jury's decision seemed to emerge from, or at least follow, a kind of loosely supervised psycho-legal community sharing. But this time the process did not produce unanimity.

After a day and a half, the jurors pronounced themselves deadlocked, and I imposed the only remaining possible sentence, mandatory life imprisonment without possibility of release. This phrase means what it says, by the way. Shortly after the trial, Kristin Gilbert was transferred to a high-security federal facility in Texas to be imprisoned until she dies.

It might be said that the unusual complexity of the Gilbert case made it more stressful and unwieldy than the ordinary capital proceeding. I do not know. The case had only one defendant, and she was of the same race and economic class, and spoke the same language, as most of the jurors. No headphones for translators.

The circumstances of the murders, while disturbing, were not gruesome or floridly violent in the usual sense. The lawyers on both sides were superb, and I had the enormous resources of the federal court. Unlike state judges, I did not have to confront the possibility of courtroom TV, which is banned in federal proceedings. Most of all, I was lucky. Logistically, the things that could have gone wrong were countless. Nothing did.

Did the jury get it right? I cannot say. I can say that no jury I have known ever showed more determination to do its job conscientiously.

I have learned to live, at times, with a lack of absolute certainty. A few weeks before the start of the Gilbert trial, a defendant before me swore on the souls of his children that he was not the dealer who sold the super-pure heroin that killed a young drug user, even though 3 witnesses said he was. I sentenced him to life in prison without possibility of release.

To do my job, I must make my peace with possible error. Usually, part of this truce with myself comes from knowing that, as long as there is life, the worst of a bad mistake can at least hypothetically, and partially, be corrected.

Perhaps this is what some of the Gilbert jurors thought, too. On the verdict form three said that, while the evidence was strong enough to prove guilt beyond a reasonable doubt, it was too weak to justify the death penalty. As one of the potential jurors said during questioning," Life is so precious, and death is so permanent."

In 1650, Oliver Cromwell, in a letter to the Church of Scotland, wrote "I beseech you, in the bowels of Christ, think it possible you may be mistaken." Some 300 years later, Judge Learned Hand observed that these words should be engraved over the portal of every courthouse and legislature.

I love our judicial system, and I am proud to serve in it. As I believe this trial demonstrated, no structure of law, anywhere or at any time, has tried so earnestly to protect the rights of those involved in it. But I have a hard time imagining anything as complicated as a capital trial being repeated very often, even by the best system, without an innocent person eventually being executed.

The simple question - not for me as a judge, but for all of us as citizens -is: Is the penalty worth the price?

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    U.S. death penalty could prove hurdle to extradition of terror suspects from Britain U.S. death penalty could prove hurdle to extradition of terror suspects from Britain
    Associated Press
    October 8, 2001

    European human-rights legislation may hinder Britain from extraditing suspects in the Sept. 11 terrorist attacks who could face the death penalty in the United States, a government official said Sunday. Article 3 of the European Convention on Human Rights bars Britain and the other signatories from extraditing prisoners if they could face capital punishment. There is no death penalty in any of the 15 member nations of the European Union.

    The Sunday Telegraph newspaper reported that Home Secretary David Blunkett had told American officials he would approve extradition only if the United States waived the right to impose the death penalty. U.S. officials may want to extradite Lotfi Raissi, an Algerian pilot who
    prosecutors say instructed some of the hijackers on the plane that crashed into the Pentagon. Raissi was arrested in London Sept. 21 on a U.S. warrant and could face charges of conspiracy to murder.

    On Sunday, Blunkett acknowledged that the government could "spend years losing" legal challenges if it contravened Article 3. But he said he was not seeking a "blanket commitment" from the United States that the death penalty would not be imposed. Blunkett told the British Broadcasting Corp. that officials would "find ways round the situation." He added: "We will ensure that we do what the rest of the world expect, which is to get people back to them when they're a democracy, when they have a perfectly open and accountable judicial system and where they know that someone is suspected of carrying out a terrorist act."

    Shortly after the Sept. 11 attacks, European Union leaders agreed to streamline extradition procedures within the union and said they also wanted to make it easier for suspects to be extradited to the United States, but sought assurances from Washington that those handed over will not face death sentences. Belgian Justice Minister Marc Verwilghen said at the time that extradition could not proceed until the death penalty issue was resolved. "We always have said in the EU that the execution of the death penalty is not an option," Verwilghen said.

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    The trial of Bin Laden: What to do if terrorist suspect is taken alive? The trial of bin Laden: What to do if terrorist suspect is taken alive?
    Los Angeles Times
    Thursday, November 01, 2001

    As warplanes bomb Afghanistan and commandos scour that country's forbidding countryside, U.S. military strategists are trying to figure out where Osama bin Laden and his associates are hiding and how to inflict the most punishment on them.

    Experts of an entirely different sort are also thinking hard about bin Laden. They are puzzling out how and where the alleged terrorist leader should be put on trial if U.S. officials ever get hold of him.

    The image of bin Laden in an American courtroom, huddling with defense lawyers, might seem far-fetched when U.S. missiles are raining down on his presumed hideouts and President Bush has declared him "wanted dead or alive."

    Yet a trial could well be the result of the U.S. pursuit of bin Laden, according to experts in international law and veteran war-crime prosecutors. Some even argue that this should be Bush's aim: to prove bin Laden guilty rather than simply have him killed.

    The notion of trying the Saudi fugitive has become a lively topic of debate among legal scholars.

    Proponents say it would be a marvelous way to showcase American principles and demonstrate that the U.S. justice system can function fairly under adverse circumstances. They also say a trial could prove to the international community that the Sept. 11 hijackings in the United States were planned and perpetrated by bin Laden's al-Qaida terrorist network.

    "You want to show the world our values, our system — that under the most severe strain, we are true to those values," said Lawrence Barcella, a Washington, D.C., attorney who prosecuted high-profile terrorism cases during 16 years at the Justice Department.

    A public trial might also cut bin Laden down to size, Barcella said.

    "The terrorist you see on a film clip on CNN holding an AK-47 does not seem quite so terrifying sitting in the dock of a courtroom, with two huge marshals standing next to him," he said.

    Other scholars shudder at the idea of bringing bin Laden into a U.S. courtroom. They say it would be extraordinarily difficult to provide adequate security for jurors, the judge and other participants, and all but impossible to select an unbiased jury. Skeptics also fret that a trial would give bin Laden a platform to propagate his ideas and recruit followers, and that his supporters abroad might take hostages in an effort to secure his release.

    "Our system was not designed to try someone who declares war on the U.S. and is willing to use all imaginable means — or what to me were unimaginable means before September 11 — to carry out that war," said Beth Wilkinson, a former Justice Department lawyer who helped prosecute Timothy McVeigh for the 1995 bombing of the Oklahoma City federal building, an act that killed 168 people and injured hundreds.

    "I hate to say it, but this case may be too big for the criminal-justice system," said Juliette Kayyem, a former Justice Department lawyer who runs the domestic-security program at Harvard University's Kennedy School of Government.

    Experts on the other side of the debate argue that the potential risks and complexities of a trial would not justify denying bin Laden due process of law.

    "It would send a terrible message if we said we're not going to hold a trial because of security threats," said Erwin Chemerinsky, a professor of constitutional law at the University of Southern California. "Where would it stop if we did this?"

    The Bush administration has not spelled out what it would do with a captured bin Laden. But under U.S. and international law, officials would be obliged to grant him a trial.

    A trial on charges stemming from the Sept. 11 hijackings could be held in any of the cities where the four flights originated, in the places where they crashed, or in locales where the hijackers took pilot training or opened bank accounts.

    Foreign governments also could put the al-Qaida leader on trial.

    Under an international hijacking convention adopted 30 years ago, any of the 80 nations whose citizens died in the attacks could try bin Laden. The convention binds the 175 signatory countries, which include the United States and Afghanistan, to prosecute hijackers and their accomplices or extradite them to countries willing to do so.

    Chapter 7 of the United Nations charter provides another legal path. It gives the U.N. Security Council broad authority to create special courts when there are threats to peace and security. In recent years, the world body has created such courts to hear allegations of war crimes in the former Yugoslavia and in Rwanda.

    The hijacking convention "is directly on point and provides a comprehensive framework for dealing with ... the tragic events of September 11," said Francis Boyle, a University of Illinois law professor who represented the Libyan government on matters related to the 1988 bombing of a Pan Am flight over Lockerbie, Scotland.

    Boyle said the United States should present whatever evidence it has against bin Laden to the Afghan government and request his extradition.

    Bush, while describing bin Laden as "the evil one" who "we know (is) guilty," has declined to make his case publicly. Instead, the administration has provided evidence primarily in secret to allies, including Britain and Pakistan. Pakistani President Pervez Musharraf has said there was enough evidence to indict bin Laden. British Prime Minister Tony Blair issued a 21-page paper laying out the case as of Oct. 4. Much of the evidence is circumstantial.

    Blair said that at least three of the hijackers were known associates of bin Laden "with a track record in his camps and organization," and that bin Laden "told associates that he had a major operation against America under preparation."

    Blair added: "A range of people were warned to return to Afghanistan because of action on or around 11 September, and most importantly, one of bin Laden's closest lieutenants has said clearly that he helped with the planning of the ... attacks and has admitted the involvement of the al-Qaida organization."

    Bin Laden has spoken once publicly since the attacks, in a videotaped statement released after the start of the U.S. bombing. He praised the hijackers and said "America will not live in peace" unless the United States withdraws its troops from Saudi Arabia and ceases its support for Israel.

    What U.S. officials and Blair have outlined publicly amounts to a massive conspiracy case against bin Laden, said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor.

    Conspiracy statutes hold plotters liable for all acts by all members of a conspiracy, even if they do not discuss each act in advance. Though firmly embedded in U.S. jurisprudence, conspiracy law is viewed with skepticism in international courts, Levenson said.

    That is not the only argument for putting bin Laden on trial in the United States, said Robert Goldman, a professor of international law at American University in Washington, D.C.

    "The U.S. is the center of gravity of this case," Goldman said. "The crimes occurred on U.S. soil. There were many violations of U.S. law. The U.S. had the most victims."

    However, other knowledgeable attorneys said there were philosophical and practical reasons for using an international tribunal.

    "In light of the international coalition that Bush has called for, it would be particularly appropriate if the international community took action," said Richard Goldstone, a justice on South Africa's constitutional court, who set up the prosecutor's office for the International Criminal Tribunal for the Former Yugoslavia.

    Goldstone said that, although there might be reluctance to extradite bin Laden to the United States for fear that he could not get a fair trial here, no country could legally refuse to extradite him to a court established by the U.N. Security Council.

    If bin Laden is tried in the United States, "we risk winning the battle but losing the war," said Ann-Marie Slaughter, a professor of international law at Harvard University. "By making this an American event, we would shift attention away from the global nature of the attack. We lose enormous legitimacy, certainly in Muslim countries."

    If bin Laden were tried in the United States, he could face the death penalty upon conviction. By contrast, all the major U.S. allies in Europe have abolished the death penalty, and the international tribunals adjudicating war crimes in the Balkans and Rwanda cannot impose capital punishment.

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    World Court Should Hear Sept. 11 Case World Court Should Hear Sept. 11 Case

    November 9, 2001

    Former chief prosecutor for the U.N. war crimes tribunal Richard Goldstone said on Friday the perpetrators of the Sept. 11 attacks on America should be tried in an international court rather than on U.S. soil.

    Goldstone, now a justice on South Africa's Constitutional Court, said the attack on the World Trade Center and the Pentagon were crimes against humanity and should be prosecuted in an ad hoc international tribunal drawn up by the U.N. Security Council.

    The main suspect for the Sept. 11 aerial attacks, in which nearly 5,000 people were killed, is Saudi-born dissident Osama bin Laden and members of his al Qaeda network, who are being tracked down by U.S. investigators worldwide.

    Pointing out the practical advantages of an international court for the case, Goldstone said a large number of suspects were likely to be arrested abroad and many nations would not want to extradite them because of U.S. support for the death penalty.

    "It would be so much easier to send those people to an international court set up by the Security Council," said Goldstone, who was chief prosecutor for the U.N. war crimes tribunal for the former Yugoslavia and Rwanda.

    In addition, he said many countries might be reluctant to extradite suspects to America for fear they would not get a fair trial in the United States.

    "I don't question it could be (fair), but I am talking about perceptions," said Goldstone, speaking to reporters at the National Press Club in Washington.

    Goldstone said the Hague in the Netherlands, where the U.N. war crimes tribunal for former Yugoslavia is based, would be an obvious venue for such a court and could be running in months.


    Another option was to have a Lockerbie-style trial, where those responsible for the 1988 bombing of a Pan Am flight over the Scottish town of Lockerbie were tried in another country, the etherlands, by a special Scottish court.

    Using this model, a U.S. judge could hear the Sept. 11 case in a foreign country, possibly in a nation which did not oppose capital punishment, thus enabling America to impose the death penalty, said Goldstone.

    He urged the United States to change its stance and support the 1998 Rome Treaty for an International Criminal Court (ICC), which has already been ratified by 43 countries. After the treaty has been approved by 60 nations, the court may begin to operate.

    "After being the strongest supporter of the International Criminal Court, the United States did an about-turn, mainly because of the fears of the military and conservative members of Congress," Goldstone said.

    "It was the Pentagon that really changed the thinking of the Clinton administration, regrettably," he said.

    The Rome Treaty limits jurisdiction to accused from countries who have ratified it and to those who committed crimes on the soil of a country that agreed to the treaty.

    Goldstone said he understood the fears of the military over an ICC, conceding it was unpleasant to have lawyers watching over them day and night and saying which targets were justified.

    "It's a nuisance, but it's necessary because the law is important, especially during times of conflict when innocent people need to be protected, he said.

    Goldstone said if the United States still opposed the ICC, an ad hoc court appointed by the United Nations (news - web sites) could come into play. Judges deemed inappropriate could be vetoed by the United States and the prosecutors appointed by the council.

    "In order to avoid impunity and multiplicity of trials ... it would make more sense to have one trial in an international court,'' Goldstone said. He voiced concern over broader powers the United States has given to Sept. 11 investigators, including the right to search without warrants and the erosion of lawyer-client privilege.

    "There is a danger when any nation faces this sort of peril to immediately look for more powers and my own fear and experience is that those powers almost inevitably affect the rights of everybody but the people intended to be put in peril," he said.
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    Seizing Dictatorial Power Seizing Dictatorial Power By WILLIAM SAFIRE
    New York Times, op-ed
    Thursday, November 15, 2001

    WASHINGTON -- Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.

    In his infamous emergency order, Bush admits to dismissing "the principles of law and the rules of evidence" that undergird America's system of justice. He seizes the power to circumvent the courts and set up his own drumhead tribunals - panels of officers who will sit in judgment of non-citizens who the president need only claim "reason to believe" are members of terrorist organizations.

    Not content with his previous decision to permit police to eavesdrop on a suspect's conversations with an attorney, Bush now strips the alien accused of even the limited rights afforded by a court-martial.

    His kangaroo court can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.

    No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."

    On what legal meat does this our Caesar feed? One precedent the White House cites is a military court after Lincoln's assassination. (During the Civil War, Lincoln suspended habeas corpus; does our war on terror require illegal imprisonment next?) Another is a military court's hanging, approved by the Supreme Court, of German saboteurs landed by submarine in World War II.

    Proponents of Bush's kangaroo court say: Don't you soft-on-terror, due-process types know there's a war on? Have you forgotten our 5,000 civilian dead? In an emergency like this, aren't extraordinary security measures needed to save citizens' lives? If we step on a few toes, we can apologize to the civil libertarians later.

    Those are the arguments of the phony-tough. At a time when even liberals are debating the ethics of torture of suspects - weighing the distaste for barbarism against the need to save innocent lives - it's time for conservative iconoclasts and card-carrying hard-liners to stand up for American values.

    To meet a terrorist emergency, of course some rules should be stretched and new laws passed. An ethnic dragnet rounding up visa-skippers or questioning foreign students, if short-term, is borderline tolerable. Congress's new law permitting warranted roving wiretaps is understandable.

    But let's get to the target that this blunderbuss order is intended to hit. Here's the big worry in Washington now: What do we do if Osama bin Laden gives himself up? A proper trial like that Israel afforded Adolf Eichmann, it is feared, would give the terrorist a global propaganda platform. Worse, it would be likely to result in widespread hostage-taking by his followers to protect him from the punishment he deserves.

    The solution is not to corrupt our judicial tradition by making bin Laden the star of a new Star Chamber. The solution is to turn his cave into his crypt. When fleeing Taliban reveal his whereabouts, our bombers should promptly bid him farewell with 15,000-pound daisy-cutters and 5,000-pound rock-penetrators.

    But what if he broadcasts his intent to surrender, and walks toward us under a white flag? It is not in our tradition to shoot prisoners. Rather, President Bush should now set forth a policy of "universal surrender": all of Al Qaeda or none. Selective surrender of one or a dozen leaders - which would leave cells in Afghanistan and elsewhere free to fight on - is unacceptable. We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.

    If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his - and Americans would have no need of kangaroo courts to betray our principles of justice.

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    Closer Look at New Plan for Trying Terrorists Closer Look at New Plan for Trying Terrorists By WILLIAM GLABERSON
    New York Times
    Thursday, November 15, 2001

    A day after President Bush signed an order allowing special military tribunals to try foreigners charged with terrorism, a more detailed picture of what government planners envision began to emerge.

    Witnesses would be sworn to tell the truth, just as they are in American courtrooms. But they might testify behind closed doors, a Bush administration official said yesterday.

    A defendant would not necessarily get his choice of a lawyer. Instead of jurors, military officers — perhaps five of them on a panel — would render verdicts in places far from home, like Afghanistan or Pakistan.

    It was an unfamiliar picture of American justice, with unusual shortcuts and limited appeal rights. Supporters said the war required that the country not allow legal fine points to stand in its way. "The idea is, you need swift justice," said Jack Goldsmith, a law professor at the University of Chicago.

    Critics said the trials could seem unfair because they would not provide the protections of American courts and might further inflame Muslim critics here and abroad.

    "If we do it through a military trial, people around the world will view the outcome as a foregone conclusion," said David Wippman, a law professor at Cornell University.

    A trial before a military tribunal would resemble a traditional trial in that prosecutors would file formal charges against a person for terrorist activities — an Al Qaeda leader captured in Afghanistan, for example.

    But the similarities would end there. Commission tribunals will accept evidence that is typically barred from court, like hearsay, which would make it easier for prosecutors to prove their cases. Even a death penalty could be imposed without the unanimity required of civilian juries. A two-thirds vote of the panel of officers would be sufficient.

    Legal experts predicted court challenges to the plan. Some said it was unclear whether courts would agree that the current circumstances justified military commissions.

    Such tribunals have a long international history. They have been used in this country at least since 1780, when George Washington appointed a board of officers to try Maj. John Andre, a British spy who slipped behind American lines to gather information from Benedict Arnold.

    "There certainly are precedents through history for military commissions, but that doesn't mean the president has the constitutional authority to use them whenever he says there's an emergency," said Christopher L. Eisgruber, director of the program in law and public affairs at Princeton University.

    But American courts have often been reluctant to second-guess the president about when commissions are justified. After a secret 18-day trial by a military commission in 1942, the Supreme Court approved the conviction of a group of Germans who landed by submarine on the beaches of Florida and Long Island with plans to use explosives for sabotage.

    In 1946, the justices approved a commission conviction of the commanding general of the Japanese army in the Philippines, Tomoyuki Yamashita. Both of the World War II trials ended in executions.

    Historians say military commissions began as traveling courts when there was a need to impose quick punishments that appeared fair in wartime. Commissions do not enforce any single country's law, but a body of international law that has developed through centuries known as the law of war.

    One of the fundamental principles of that body of law is that combatants cannot target civilians.

    In its 1946 ruling, the Supreme Court said American commanders had the power "to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war."

    A Bush administration official with knowledge of the planning said officials had been studying the World War II cases. But the official said the decision to authorize the tribunals had been influenced by factors like the ability of the tribunals to move quickly and to limit intelligence information that might become public.

    In civilian trials, a defendant has broad access to prosecution information. But the military tribunals could sharply limit a defendant's access to intelligence reports and could close entire proceedings if classified information were to be discussed.

    The trials would shortcut many of the rules that slow trials. Extensive rules, for instance, generally bar the use in civilian trials of illegally seized evidence. But under the president's order, all evidence that would "have probative value to a reasonable person" is to be considered by the tribunals.

    The Bush official who described the creation of the tribunals said such choices were made to assure that the process did not get bogged down. But he said many people inside the government were working to assure that the trials remained fair. For example, he said, officials generally favor insisting that prosecutors prove guilt beyond a reasonable doubt.

    Mr. Bush's order left open the possibility that commission trials could be held in the United States. But the official said the procedure was intended largely for use elsewhere in the world for the trial of Al Qaeda members and other terrorists.

    "I would find it very unlikely," the official said, "that we are going to do these trials on the territory of the United States."
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    Statement of the Honorable William D. Delahunt in support of the Delahunt-Scott Amendment to The Terrorist Bombings Convention Implementation Act of 2001 Statement:Delahunt-Scott Amendment to Title 1 of H.R. 3275

    U.S. House of Representatives, Committee on the Judiciary
    Statement of the Honorable William D. Delahunt of Massachusetts

    In Support of the Delahunt-Scott Amendment to Title 1 of H.R. 3275, The Terrorist Bombings Convention Implementation Act of 2001

    November 15, 2001

    Mr. Chairman, I have an amendment at the desk.

    Mr. Chairman, this amendment, in which I am joined by my good friend, the ranking member of the Crime Subcommittee (Mr. Scott), would delete the language authorizing the imposition of the death penalty for the offenses set forth under section 102.

    Yesterday, at our subcommittee hearing, the Administration witnesses acknowledged that this provision is not required by the international convention we are seeking to implement. In fact, Mr. Chairman, not only is it not required by the convention, but it could actually impair the fight against international terrorism - by making it harder for the Justice Department to secure extradition in these kinds of cases.

    Our continued use of the death penalty has brought condemnation from civilized nations across the globe. Even some of our closest allies - such as Canada - have begun to refuse extradition requests by the United States unless their courts can be assured that the defendants will not face execution. Given that situation, how can it serve our national interests to enact additional provisions that further marginalize us within the family of nations?

    The only answer I have heard is that this new death penalty provision merely tracks current law with respect to comparable domestic crimes. That may well be. But the fact that current law presents an obstacle to our law enforcement objectives is hardly a persuasive argument for compounding the problem.

    The fact is that no persuasive argument can be made. People will continue to disagree about whether the death penalty acts as a deterrent to certain categories of crimes. But with respect to the type of crime we are addressing in this legislation, is there anyone who seriously believes that the prospect of the death penalty will deter terrorists from committing the kinds of atrocities our nation experienced on September 11?

    No, Mr. Chairman. Let us implement these conventions with all due speed. But let us do so in a way that advances our national objectives. I urge support for the amendment and yield back the balance of my time.

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