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.