By MICHAEL C. DORF
Wednesday, February 13, 2008
FindLaw’s Writ

Earlier this week, the Bush Administration announced plans to seek the death penalty for Khalid Shaikh Mohammed and five other persons who allegedly played a role in the 9/11 attacks. The Administration plans to try the six defendants before military commissions, as authorized by the Military Commissions Act (MCA) of 2006. But that plan raises a host of difficult legal questions.

Will the defendants or at least their lawyers have access to all of the evidence against them, and if not, what measures will be used to ensure the reliability of that evidence? Will the government seek to introduce statements made by Mohammed as a result of the waterboarding to which the Administration acknowledges he was subjected, or would that be deemed a violation of Section 948r(b) of the MCA, which forbids military commissions from admitting any “statement obtained by use of torture”?

Would other evidence derived from such statements be admissible? And so on.

In this column, I will set aside such important issues to address a more basic one: Is the Administration right to seek the death penalty in the first place? Answering that question in the special context of these high-profile terrorism cases will in turn shed light on the debate about capital punishment more generally.

The Worst of the Worst

Many people in the United States and around the world categorically oppose capital punishment on moral grounds. To such death penalty abolitionists, the death penalty is always wrong, even for Khalid Shaikh Mohammed.

However, a majority of Americans believe that the death penalty is sometimes justified, and the U.S. Supreme Court has held that, subject to appropriate procedural safeguards, it is constitutionally permissible as a tool of domestic criminal law. If one begins with the premise that there are some crimes that are so heinous, and some criminals who are so beyond redemption, that they deserve to die, then it is hard to imagine better candidates for the death penalty than mass murderers.

Accordingly, if the government proves its case against these 9/11 defendants, then one would expect that all but the most ardent death penalty abolitionists would find the death penalty a fitting punishment.

Nonetheless, a number of factors would seem to counsel restraint.

Can the Death Penalty Deter a Martyr?

Death penalty supporters sometimes point to deterrence as a basis for government imposition of the ultimate penalty. Whether the death penalty in fact deters crime is the subject of serious debate. Some recent studies claim to find a deterrent effect, while other scholars have pointed to flaws in the methodology of these studies that, the critics say, make the researchers’ conclusions unreliable.

So, does the death penalty have a greater deterrent effect than the prospect of life imprisonment? Whatever the right answer to that question may be, the question of deterrence has a very different complexion when applied to terrorists whose very aim is to die while carrying out an attack on civilians. People who hope to succeed by dying are highly unlikely to worry about the possibility of being killed if they are captured.

This logic applies most directly to Mohamed al-Qahtani, the alleged “twentieth hijacker,” as he would have died in the 9/11 attacks if he had successfully entered the United States in August 2001. One might think, however, that Khalid Shaikh Mohammed—the alleged mastermind of the attacks—and the four other defendants—who are alleged to have played supporting roles—were not planning to die, and thus that executing them after a guilty verdict would indeed be, for them, a punishment rather than vindication.

Yet for two reasons, this line of reasoning is faulty. First, whatever else one can say about al Qaeda operatives and their leadership, it is difficult to accuse them of insincerity. People who voluntarily forego comfortable lives to live in caves, fight in wars, and murder civilians in large numbers, all for the supposed glory of God, are deadly serious about their willingness, even eagerness, to become martyrs.

Second, even if a handful of al Qaeda members harbor doubts about the 72 virgins awaiting them in heaven, that fact would only be relevant to specificdeterrence of those particular persons, but the core consequentialist argument for the death penalty is that it enhances general deterrence. In this view, terrorists at large will see the execution of Mohammed, al-Qahtani and the others, and abandon their nefarious plans for fear of a similar fate. Given the motivations and methods of terrorists, however, this scenario is wildly implausible.

Just Deserts

Many supporters of capital punishment believe that some killers deserve to die, regardless of whether the death penalty has any specific or general deterrent effect. At least for the worst killers (and in the view of some, for all or nearly all killers), retribution alone is a sufficient basis for the death penalty. Death, in this view, is the just desert for killers.

Retributive justifications for the death penalty can also be linked to the consequences of not imposing it, which may include vigilantism. The family and friends of victims, as well as society at large, may be so outraged by a killer’s crimes that they threaten to take matters into their own hands if the state does not deliver a sufficiently severe penalty.

Nonetheless, the argument for retribution does not rest on this threat. Even if there is no risk of vigilantism, retributivists argue, some killers must still be executed in the name of justice.

The retributivist argument for the death penalty is indeed strong in these cases, at least if three conditions hold. First, one must actually believe in the right of human beings to exact retribution for its own sake. Second, one must find the evidence of the defendants’ guilt convincing. And third, one must be persuaded that the defendants in fact played a substantial role in the 9/11 plot. Depending on the evidence, it is possible that these conditions would hold for some but not all of the six defendants.

Mitigating Factors

Importantly, to say that, based on their crimes, the defendants deserve to die, is not to say that the government is obliged to impose a death sentence. The Supreme Court’s cases interpreting the Eighth Amendment’s ban on cruel and unusual punishments do not directly apply of their own force to trials of aliens captured abroad and tried before military commissions. However, Section 949s of the MCA forbids “cruel and unusual punishment,” and so by statute, the Court’s death penalty jurisprudence may be incorporated into capital cases before military commissions. Moreover, even if the Court’s Eighth Amendment precedents are not directly applicable in this way, they remain instructive in thinking about whether the government acted rightly in charging the 9/11 defendants with capital offenses.

One principle of the Court’s Eighth Amendment jurisprudence, as first articulated in the 1978 case of Lockett v. Ohio, requires that “the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In a civilian murder case, this principle would be given effect by permitting a defendant to offer, for example, evidence that he was severely abused as a child or that, while in jail awaiting trial, he had sincerely repented.

The Lockett case does not say that the sentencing judge or jury cannot impose the death penalty on a defendant who was abused as a child, who has repented, or who has offered other evidence of mitigation. But it does require that the sentencer at least take into consideration all manner of mitigating evidence.

Still, it is very difficult to imagine that a military panel that is otherwise persuaded that the 9/11 defendants deserve to die, would impose a lesser penalty on the ground that they love their families, or grew up in poverty, or have offered any of the other sorts of evidence that are typically offered in mitigation in a civilian criminal trial.

The Wisdom of Donald Rumsfeld

Nevertheless, there is at least one reason why the sentencing jury might conclude that a sentence of less than death is warranted: Fear of backlash. In one of his most lucid memoranda while Secretary of Defense, Donald Rumsfeld asked in 2003 whether the United States was “capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us.” The question was and remains urgent, and it is hardly obvious that executing six al Qaeda detainees after a trial that much of the world will inevitably view as unfair, will increase rather than decrease the security of the United States.

To be sure, the fact that executing Khalid Shaikh Mohammed could further fan the flames of anti-American violence is not exactly mitigating evidence, nor are Mohammed or the other defendants well-positioned to make this argument. Nonetheless, it is a valid consideration in the decision whether to charge the defendants with capital offenses. Even retributivists should care enough about consequences to settle for life imprisonment where the execution of a death sentence would likely induce the killing of more innocents.

Exactly how the consequentialist calculus comes out is not entirely clear. On one hand, there is the risk of attacks that executing one or more of the 9/11 defendants might inspire; one the other hand, there is the risk of attacks to which their continued imprisonment might lead. The consequentialist must balance the two against each other. If the United States were to capture Osama bin Laden, for example, one pragmatic argument for putting him to death (after a fair trial) would be to extinguish the hope among his supporters that, like Napoleon returning from Elba, bin Laden might once again lead their cause.

Thus, a retributivist Administration could have plausibly reached the conclusion that seeking the death penalty for the six 9/11 defendants was in the national interest. Whether the Bush Administration in fact carefully considered the likely consequences of its decision is not clear, however.

A Problem for the Next President

Now that the government has decided to charge the 9/11 defendants with capital offenses, we can expect years of litigation before any death sentences are carried out. In addition to the many legal issues the cases raise, there will be an acute political issue. Under Section 950i(b) of the MCA, the President must approve any death sentence imposed by a military commission.

Of course, even absent Section 950i(b), the President would have had the power to commute a death sentence to life imprisonment (or some other penalty), but Section 950i(b) places the responsibility for the punishment squarely on the President’s shoulders. And the responsible President will almost certainly not be the current one.

By the time a death sentence for Khalid Shaikh Mohammed arrives at the desk of a President Clinton, McCain, or Obama, the domestic political pressure to carry it out will likely be great. Yet both Senators Clinton and Obama voted against the MCA as creating a flawed set of procedures, and Senator McCain, while voting in favor of the MCA, has been a vocal critic of waterboarding. Thus, a death sentence tainted in any way by the government’s treatment of Mohammed would pose for President McCain no less an issue than a death sentence tainted by the MCA’s procedures would pose for President Clinton or President Obama.

Thus, this week’s charging decisions, like so many of President Bush’s decisions, will leave his successor in a delicate position.