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.


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.