As President Obama and his Republican critics continue to spar over the nature and location of any trials of accused Al-Qaeda terrorists, including 9-11 mastermind Khalid Sheikh Mohammed and key facilitator Ramzi Binalshibh, both those who favor military tribunals and those who prefer civilian courts appear to agree that the verdicts should lead to executions. Press Secretary Robert Gibbs made the White House position clear on January 31, 2010, stating that “Khalid Sheikh Mohammed is going to meet justice and he's going to meet his maker….He's likely to be executed for the heinous crimes he committed."
The limited public protest over this statement came primarily from individuals like Ramzi Kassem, an attorney for past detainees at Guantanamo Bay, who objected to Al Jazeera that it was wrong "to say something that so clearly cuts against the principle of the presumption of innocence, which is at the heart of our judicial system." What has been thoroughly lacking from American political discourse—notably including those activists in the so-called “culture of life” movement—are voices that find the crimes of Mohammed, Binalshibh and their accomplices unequivocally horrific, yet nonetheless view executing them as both tactically misguided and morally unjustifiable.
Those individuals who oppose the death penalty as a form of domestic criminal punishment have long struggled with the distinct ethical challenges raised by genocide, war crimes and international terrorism. Whether or not police have arrested the correct rape or murder suspect is sometimes in doubt—and DNA evidence has shown that even “airtight” eye witness identifications can be prone to error. In contrast, no reasonable person doubts the atrocities committed by the Nazis tried at Nuremberg or questions the identities of the principle perpetrators.
Similarly, only a hardened conspiracy theorist is likely to believe that the leading Al-Qaeda plotters are innocent of crimes to which they have repeatedly confessed and of which they have even boasted. Nor are there any mitigating circumstances to justify hijacking airplanes and flying them into skyscrapers. I wish to make clear—preemptively—that I share none of the sentiments of those on the fringe left who seek to apologize for the atrocities of 9-11 or the numerous attacks upon innocent civilians that have occurred before or since. Ward Churchill’s characterization of the victims inside the Twin Towers as “little Eichmanns” is simply dead wrong. However, it does not follow that because we deplore the conduct of the terrorists, or view them as mass murderers, we are automatically justified in executing them.
I do not intend to argue here that the death penalty is always unacceptable—although I happen to believe it is. Rather, I would like to point out that the traditional justifications for capital punishment simply do not apply to terrorists who are already in custody. The most plausible argument for ending the lives of odious convicts is deterrence: that executions both specifically keep these offenders from committing additional crimes and, more generally, dissuade would-be offenders from following in the footsteps of their executed brethren. Neither of these concerns applies to the cases of senior Al-Qaeda detainees. The prospect of men like Khalid Sheikh Mohammed or Ramzi Binalshibh escaping from United States custody is highly farfetched.
If the concern is that they might be sending secret messages to adherents, the solution is to restrict further the conditions of their confinement. A strong case can be made for killing such individuals while they are on the battlefield or blowing them up in their sanctuaries abroad. Once they are securely in our custody, their threat has been neutralized. At the same time, the sorts of fanatics who seek to kill for Al-Qaeda appear exceedingly unlikely to be deterred by the threat of future execution—especially when many of them are actively seeking to commit suicide for their extremist cause. In contrast, as perverse as it may sound, the martyrdom of even a few senior Al-Qaeda leaders in United States prisons may attract additional martyrs.
A second supposed purpose of capital punishment is the vindication of the rights of the victims and their survivors. Those individuals who have suffered at the hands of criminals may wish to have a say in the fate of their tormenters. An execution, it is alleged, can also declare to the world that society views an offense as particularly heinous. Again, these grounds do not argue for executions in the 9-11 cases. On the one hand, the civilized world already recognizes the gravity of the crimes committed by these terrorists. Those naysayers who do not yet recognize the unique nature and magnitude of these atrocities—let’s call them the uncivilized outliers—are unlikely to be convinced by a few hangings in the public square.
On the other hand, the collective will of the victims in these cases is neither clear nor meaningfully ascertainable. In a murder trial, a prosecutor can ask the victim’s family: Do you wish to pursue capital punishment? Some survivors will say yes. Others—for religious or personal reasons—will say no. (The rogue prosecutor who pursues a death sentence over the survivors’ objections, to my thinking, acts egregiously and compounds their victimization.) Alas, among the thousands of family members of those murdered on 9-11, opinions regarding the execution of the perpetrators are likely to be highly varied. One might argue that it is unfair to deny vindication to a first-responder widow who seeks the ultimate punishment for the men who butchered her husband. However, that same ultimate punishment may cause additional grief to the Catholic or Buddhist widow who deeply opposes all executions on religious grounds.
The only plausibly convincing argument in favor of executing accused terrorists already in captivity relies upon old-fashioned notions of vengeance and retribution. On a purely emotional level, I would never fault anyone for wanting to kill the men who killed their loved ones. I suspect a majority of Americans harbor such sentiments in their hearts. As a matter of social policy, however, mercy is infinitely preferable to vengeance. The message we send to the world by not executing our worst enemies is far more powerful than any we might send by killing them. Such symbolic forbearance does not make us look weak. It makes us look decent. It announces to the world that our society and our culture prize human life far more than does the terrorists’ brand of extremism. History might then remember ours as a civilization so strong and so just that it did not need to engage in acts of petty retribution against its enemies. Moreover, as a point of strategy, even converting a few of these detained individuals to our side would do far more for our cause than executing the whole lot of them.
Some disingenuous ideologues will inevitably argue that the law already demands the death penalty for these crimes, so the issue has been democratically settled. The truth is that the law does absolutely nothing of the sort. Instead, it merely allows for the possibility of capital punishment—and also for the alternative possibility of lifelong imprisonment. It is entirely up to the discretion of prosecutors and the discernment of juries to determine which penalty is more appropriate. I do not realistically expect any prosecutor to pursue the lesser sentence in this politically charged environment, but I remain hopeful that a holdout juror will ultimately spare the lives of these offenders. Not, I emphasize, because what these men have done isn’t atrocious. Rather, because mercy and a respect for human life are what separates our system of values from theirs.