Thursday, November 19, 2009

KSM Spells Bad News for U.S. Citizen Defendants in Death Penalty Cases

I know a lot of people are concerned that Khalid Shaikh Mohammed and his cohorts might somehow benefit from the procedural protections afforded to U.S. criminal defendants under our Constitution, particularly in capital cases. My greater concern is precisely the opposite. I think it is by far more probable that these protections will be disregarded or seriously diluted in pursuit of a supposed “greater good,” namely, the conviction and execution of these terrorist war criminals. As Attorney General Holder has made clear, failure to convict and execute them is not an option. As President Obama has pronounced, these defendants will be convicted and sentenced to death. This is not the “rule of law” in action. Indeed, this kind of conduct by the President and his Attorney General in any other civilian capital case would be unthinkably inappropriate. In making his hard nosed pronouncements, President Obama is not acting in a manner befitting the Chief Executive Officer of the United States. However, these same pronouncements would be understandably appropriate coming from him as the Commander in Chief of our armed forces convening a military tribunal to consider the fate of foreign criminal combatants who crossed our borders to murder thousands of our innocent citizens. My problem is that the lines between the military and civilian worlds are becoming dangerously blurred here. We can no more afford to have military imperatives dominate our civil justice system than we can to have domestic civil justice imperatives trump the mission of our armed forces. If there is still time to reconsider, we should not take this leap into the unknown without a further round of careful deliberations by our elected legislative representatives in the House and Senate. It is far too important a subject to leave to the Executive Branch of our federal government, except as it may fall within the scope of the President’s duties as Commander in Chief of our armed forces with respect to military tribunals.

Wednesday, November 18, 2009

Shocking Death Penalty Pretrial Publicity Campaign Waged by Our Nation's Top Officers

Here is how the New York Daily News reported on Attorney General Eric Holder's testimony today before the Senate defending his decision to conduct the capital trials of Khalid Shaikh Mohammed and his cohorts in federal court in downtown Manhattan, along with the supporting comments of the President:
WASHINGTON - President Obama played chief prosecutor in the looming New York City 9/11 trial today, predicting critics will shut up when Khalid Shaikh Mohammed is convicted and executed for masterminding the attacks. "I don't think it would be offensive at all when he's convicted and when the death penalty is applied to him," Obama told NBC News.
If a U.S. federal prosecutor in any other capital case pending in federal court were to make these kinds of remarks in public, let alone openly to the people of the United States, there would be serious ethical concerns raised about injurious pretrial publicity. Worse, here is the response of AG Holder to criticism from Sen. Sessions for his decision to conduct these trials in civilian criminal court, made to the elected Senatorial representatives of the people of the United States:
But Holder scoffed at that, insisting KSM's voice and "hateful ideologies" will be no louder in civilian court than in a military commission. "We need not cower in the face of this enemy," Holder said. If KSM repeats his earlier rants in the courthouse at the U.S. naval base in Cuba, "the nation and world will see him for the coward he is," the attorney general added. "I'm not scared of what KSM has to say at trial - and no one else needs to be afraid, either."
If these remarks from the President and the Attorney General are not specifically intended to incriminate the defendants here and to promote highly prejudicial pretrial publicity in aid of pursuing the death penalty for them, then I'm a monkey's uncle. If this is to become acceptable ethical precedent for prosecutors in future U.S. capital litigation, the damage caused by our Chief Executive and his Chief Prosecutor will be staggering. The real issue here is whether these defendants should be tried in domestic criminal courts at all. Bad facts make bad law. We should think twice before we let the facts of war make law for our own citizens.

Tuesday, November 17, 2009

Iran Gets In the Death Penalty for Terrorists Game

Iran has sentenced five people to death for their actions in the recent post election turmoil. Here is an excerpt from the full AP report :
A Justice Department statement said the five sentenced to death were members of "terrorist and armed opposition groups," state television reported. The statement said the courts have sentenced a total of 89 defendants since the process began and 81 of them got prison terms ranging from six months up to 15 years.

I wonder how long it will take for Iran to carry out these executions? It looks like the game of trying and executing "terrorists" is in full swing now. Our own Justice Department will get its turn at bat soon enough in federal court in downtown Manhattan. It's a good thing that we know for sure we have the right guys and that their crimes were so severe. Otherwise, we invite comparisons with how Iran tries and executes terrorists. For its part, Iran will no doubt contend that it nipped murderous violence in the bud before it could be carried out.

Are domestic civilian criminal courts the right place for trying and executing foreign terrorists?

Monday, November 16, 2009

Death Penalty on Parade!

It's been a couple of years since my last post, but this deveopment has my full attention. Attorney General Eric Holder's announcement that accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged accomplices will be tried in New York federal court and that the government will seek the death penalty sets the stage for the most colossal show trials and executions since Saddam Hussein and his cohorts. Let's see how we do it compared to the Iraqis! Aside from issues of guilt, will there be a mitigation case developed for capital sentencing? The recent U.S. Supreme Court decision in Bobby v. Van Hook downplaying the significance of American Bar Association guidelines setting forth minimum standards for effective death penalty representation seems ominously timed. The amount of damage these trials, which seem almost predestined to end with executions, will do to the rest of the capital litigation trial and appellate system in the U.S. remains to be seen, but I am not optimistic at all. For starters, anyone hoping that the federal death penalty will be abolished any time soon should forget about it. Stay tuned here.