Fordham Law

Executing Accused Terrorists May Be Left to Obama

Martha Rayner in The top news section of, December 10, 2008

Media Source

Dec. 10 (Bloomberg) -- President-elect Barack Obama may soon have to choose between executing five confessed plotters of the Sept. 11 attacks or trying them in courts that do more to protect their rights.

The accused terrorists -- led by the avowed ringleader of the 2001 strikes -- told a military tribunal this week at the U.S. Navy base at Guantanamo Bay, Cuba, they want to plead guilty. At least two have said they seek martyrdom by being put to death by the U.S.

Obama would have to “invest a lot of political capital into justifying why we need a better system for these particular guys,” Lisa Hajjar, a legal sociologist at the University of California at Santa Barbara, said in an interview. “A lot of Americans would be just as happy to see these people plead guilty.”

<b>Martha Rayner, a Fordham University law professor who represents two Guantanamo detainees not involved in the Sept. 11 case, predicted in an e-mail that Obama will abandon the military commissions created to try suspected terrorists because of their procedural flaws “and the stigma associated with them.” </b>

During the campaign, Obama suggested he would scrap the military tribunals, saying detainees should be tried in civilian courts or before a military court-martial that affords more legal safeguards.

Self-Described Mastermind

Khalid Sheikh Mohammed, the self-described mastermind of the al-Qaeda attacks, and four co-defendants stunned onlookers at Guantanamo this week by offering to plead guilty to orchestrating the Sept. 11 attacks that killed almost 3,000 people. With the mental competency of two defendants unresolved, it is almost assured the case won’t be concluded before President George W. Bush leaves office on Jan. 20.

The judge ordered legal briefs on whether a military jury can impose the death penalty if it didn’t find the defendants guilty at a trial. If there are guilty pleas, it could lead to several weeks of hearings before the military jury to present evidence on why capital punishment is called for. No further hearings have been scheduled in the case for now.

Mohammed has sought “to use the American system to enable him to complete his martyrdom operation,” Hajjar said. The offer to plead guilty “is a manipulation that should have been very clearly and obviously anticipated.”

At their June arraignment, Mohammed and fellow defendant Ramzi Binalshibh told the court they welcomed martyrdom.

Politically Savvy

Hajjar said Mohammed is politically savvy and taking advantage of the procedural rights in the tribunal.

“We just give him the chain and he keeps yanking it,” she said.

Army Major Jon Jackson, lawyer for defendant Mustafa al Hawsawi, said in an interview that the detainees’ joint decision to plead guilty shows that Mohammed has been calling the shots for the group.

Defense lawyers said Mohammed and the detainees, while isolated, were aware of Obama’s election and its possible implications for them. The detainees decided on offering confessions on Nov. 4, the day Obama was elected.

At this week’s proceeding, Mohammed showed his disdain for the legal process. He told the trial judge, Army Colonel Stephen Henley, “We don’t want to waste our time in motions and motions.”

Victims Families

They “seemed to view the proceedings as a joke,” said Hamilton Peterson, whose father and stepmother were killed on United Flight 93 that crashed in Pennsylvania after it was hijacked on Sept. 11. “With all this due process, they were mocking it,” said Peterson, one of nine relatives of victims of the 2001 attacks who witnessed this week’s proceedings.

Today, 21 relatives of people who died in the Sept. 11 attacks took issue with the support for the war-crimes tribunals by the nine family members who attended this week’s proceedings.

“We are strongly encouraged by the incoming administration’s promise to end this shameful system,” the group said in a statement issued by the American Civil Liberties Union. “We are hopeful for a fresh start for these and all other Guantánamo prosecutions in U.S. courts worthy of American justice.”

The Pentagon said the nine relatives who were the first to attend proceedings for the five Sept. 11 defendants since the case went to court in June were picked at random from more than 100 who applied for an opportunity to be observers.

Confessions by Plotters

The confessions by the Sept. 11 plotters may lend support to any decision by Obama to scrap the tribunals, said Matthew Waxman, a former Defense Department official who teaches law at Columbia University. “The more circus-like the military commissions proceedings become, the more persuasive will be arguments that they need to be replaced,” he said in an e-mail exchange.

The Supreme Court struck down the military commissions that Bush set up after the Sept. 11 attacks, prompting Congress to enact legislation in 2006 to start them again. A series of legal challenges delayed the start of trials until this year.

Defense lawyer Thomas Durkin voiced concern that Obama will “get painted into a corner because all of a sudden we are going to have people who are pleading guilty down in Guantanamo.”

Complex Decisions

There are “complex political decisions that have to be made,” Durkin told reporters. The Bush administration shouldn’t push the tribunal to deny Obama the opportunity for “careful consideration of what is, indeed, a very complex problem.”

Army Colonel Lawrence Morris, the military’s top war-crimes prosecutor, rejected Durkin’s suggestion that the Bush administration was using the plea offers for “political blackmail” to force Obama to let the Sept. 11 cases go to a conclusion under the commission.

“The guilty plea is a decision solely in the control of the accused,” he said.

Morris defended the military commissions as fair and open, saying the Guantanamo courtroom has only been closed to spectators for several minutes at the request of the defense.

Asked what he would do if Obama shuts down Guantanamo and the commissions, Morris said he would “obey the orders of my commander in chief.”